Delhi High Court
Union Of India And Anr vs Dinesh Singh And Anr. on 28 May, 2018
Author: Hima Kohli
Bench: Hima Kohli, Pratibha Rani
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10543/2017
UNION OF INDIA AND ANR ..... Petitioners
Through: Mr.Jasmeet Singh, CGSC for
UOI with Ms.Mohnaa
Shrivastava & Mr.Aditya
Madaan, Advocates.
Versus
DINESH SINGH AND ANR. ..... Respondents
Through: Mr.K.K.Rai, Sr.Advocate with
Mr.R.N.Singh, Mr.R.V.Sinha,
Mr.Amit Singh, Mr.Anshul Rai
& Mr.Vaibhav Pratap Singh,
Advocates for R-1
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 28.05.2018
1. The petitioner No.1/Ministry of Finance, Department of Revenue and the petitioner No.2/Central Board of Direct Taxes (CBDT) are aggrieved by the judgment dated 12.05.2016, passed by the Tribunal in O.A. No.3604/2015, filed by the respondent No.1, W.P. (C) 10543/17 Page 1 of 22 presently working on the post of Additional Commissioner of Income Tax, wherein he had prayed for quashing of the order dated 16.09.2015, whereby promotions were made from the Grade of Additional Commissioner/Additional Director of Income Tax to the Grade of Commissioner of Income Tax (in short „CIT‟). Further, the respondent No.1 had sought promotion to the Grade of CIT w.e.f. 16.09.2015, the date when the respondent No.2 herein (respondent No.3 in the O.A.), who was junior to him, had been promoted to the subject post, with all consequential benefits.
2. Before noting the arguments addressed by learned counsel for the parties, we may briefly recapitulate the relevant facts of the case. In the year 1994, respondent No.1 was selected as an IRS Officer and he joined the services as an Assistant Commissioner (Probationer) w.e.f. 04.09.1994. Subsequently, he was promoted to the post of Deputy Commissioner, Income Tax. In the year 2005, the respondent No.1 was promoted as Joint Commissioner, Income Tax and thereafter, on 01.01.2007 as Additional Commissioner of Income Tax. On 05.06.2015, a DPC was held for preparing a panel for the year 2014-15, for making promotions to the post of CIT. The said panel included the name of the respondent No.1. The DPC submitted its recommendations to the Competent Authority, namely, the Appointment Committee of Cabinet (in short „ACC‟) wherein the name of the respondent No.1 had duly featured.
3. It is the case of the petitioners that after 05.06.2015, on 26.06.2015, the CVC gave its first stage advice to the Ministry of Home Affairs for initiating major penalty proceedings against the W.P. (C) 10543/17 Page 2 of 22 respondent No.1. A letter to the said effect was received by the Ministry of Home Affairs on 20.07.2015. Immediately thereafter, the petitioners wrote a letter dated 28.07.2015 to the Ministry of Home Affairs asking for certified copies of various documents including the factual report on the Articles of Charge so that appropriate disciplinary action could be initiated against the respondent No.1.
4. Simultaneously, when the recommendations of the DPC were placed before the Competent Authority, namely, the ACC, for making promotions to the post of CIT, the ACC desired that the status of complaints pending against the respondent No.1 be verified and on receiving requisite information, directed that the decision on the pending complaints be expedited by the petitioner No.1/Ministry of Finance. On 16.09.2015, an order was passed by the petitioner No.2/Central Board of Direct Taxes promoting eligible officers to the post of CIT. The name of the respondent No.1 did not find mention in the said order.
5. Aggrieved by the said exclusion, the respondent No.1 approached the Central Administrative Tribunal on 03.11.2015, by filing O.A.No.3604/2015. The said petition was opposed by the petitioners, who filed their counter affidavit. After considering the submissions made by the parties, the Tribunal passed the impugned judgment directing the petitioners to promote the respondent no.1 from the date when his immediate juniors had been promoted. For arriving at the said decision, the Tribunal placed reliance on the decision of the Supreme Court in the case of Union of India Vs. K.V.Jankiraman, AIR 1991 SC 2010. While allowing the O.A. filed W.P. (C) 10543/17 Page 3 of 22 by the respondent No.1, the Tribunal expressed the following view:-
"6. We have heard the learned counsels and perused the record. It is an admitted position of the respondents that at the time of holding DPC the DGIT (Vigilance) had accorded vigilance clearance and there was no disciplinary case pending against the applicant. In para 4
(viii) and (ix) of the counter reply it has been categorically stated that the case of the applicant did not fall under any one of the three categories mentioned in DOP&T OM dated 14.09.1992. After a query raised by the ACC, the official respondents got in touch with the MHA who informed them that the first stage advice of CVC had been obtained for initiating major penalty proceedings against the officer. It is not clear as to how in respect of an officer of Indian Revenue Service working under respondentsno.1 & 2, the CVC advice was obtained by MHA. However, leaving it at that, the fact of the situation is that the respondents have not moved beyond that stage and issued any charge sheet, or are taking any action that would come within the ambit of the three categories mentioned in DOP&T OM dated 14.09.1992. Therefore, there is no ground on which the promotion of the applicant could have been kept in abeyance. The respondents have admitted that the applicant was considered fit for promotion, and that some complaints on which CVC advice was obtained by MHA, came to their notice only after a query from the ACC. In our view, pending complaint or an intention to initiate major penalty proceeding against an officer is not sufficient ground to deny him promotion.
7. In the face of these facts and the judgment of Hon‟ble Supreme Court in K.V.Jankiraman (supra), the OA is allowed. The respondents are directed to promote the applicant from the date on which his immediate his junior was promoted. The applicant will be entitled to all consequential benefits. These directions may be complied W.P. (C) 10543/17 Page 4 of 22 with within a period of six weeks from the date of receipt of a copy of this order. No costs."
6. Aggrieved by the decision of the Tribunal, the petitioners have filed the present petition stating inter alia that after the impugned judgment was pronounced on 12.05.2016, a charge-sheet was issued against the respondent No.1 on 06.02.2017 and that being the position, his case falls under clause 7 of the O.M. dated 14.09.1992 issued by the DoPT, Ministry of Personnel, Public Grievance and Pension, Government of India. Therefore, the recommendations made by the DPC qua the respondent No.1 had to be placed in a sealed cover, in circumstances explained at length in the captioned O.M.
7. Assailing the impugned judgment, Mr.Jasmeet Singh, learned counsel for the petitioners has argued that once a charge-sheet is issued against a government servant, then the sealed cover procedure ought to be followed in terms of the O.M. dated 14.09.1992; that even in the case of K.V.Jankiraman (supra) cited in the impugned judgment on subsequent issuance of a charge-sheet, the Supreme Court had upheld the decision of the Department that had in the said case, resorted to the sealed cover process. He concluded by stating that promotion of the respondent No.1 would be against the interest of public administration as he is still under a cloud. In support of his submissions, learned counsel for the petitioners has relied on the following decisions:-
(i) State of Madhya Pradesh and Another Vs. Syed Naseem Zahir and others, 1993 Supp (2) SCC 225;W.P. (C) 10543/17 Page 5 of 22
(ii) Union of India and Anr. Vs. R.S.Sharma, (2000) 4 SCC 394;
(iii) C.P.Gupta vs. Union of India (UOI) & Ors., 2006 (91) DRJ 396
(iv) Union of India and Ors. Vs. C.K.Jain, 2017 (244) DLT 532;
8. Per contra, Mr.K.K.Rai, learned Senior Advocate appearing for the respondent No.1 refutes the submission made by the other side and supports the impugned judgment. He refers to the very same O.M. dated 14.09.1992 and states that it has no application to the fact situation of the instant case. It is submitted that the three material dates in the present case are 05.06.2015, when the DPC had convened for making recommendations for promotions to the post of CIT and at that time, admittedly, the respondent No.1 had been assessed as „Fit‟; the next relevant date is 16.09.2015, when officers, who were junior to the respondent No.1, were promoted to the Grade of CIT and lastly, the date 06.02.2017 when the petitioners had finally issued a Memorandum to the respondent No.1 proposing to initiate disciplinary proceedings against him.
9. Learned Senior Counsel states that aggrieved by the charge- sheet dated 06.02.2017 issued to the respondent No.1, he has filed an Original Application before the Tribunal in September, 2017 (OA No.2772/2017) wherein by an interim order dated 28.03.2018, the Tribunal has stayed further proceedings and directed the inquiry proceedings against the respondent No.1 to be kept in abeyance. The said petition is pending adjudication and is listed before the Tribunal on 18.09.2018. Learned counsel clarifies that the respondent No.1 had waited patiently for a reasonable time for implementation of the impugned order but when the petitioners failed to take any action, he W.P. (C) 10543/17 Page 6 of 22 had to file a contempt petition (CP No.422/2016 before the Tribunal) in the month of October, 2016. In the said proceedings, the petitioners had initially stated that they were proposing to implement the impugned judgment but later on, the Memorandum dated 06.02.2017 was issued which is the subject matter of O.A. No.2772/2017. Nine months down the line, the petitioner filed the present petition in November, 2017 assailing the impugned judgment. In support of his submission that O.M. dated 14.09.1992 does not have any application to the facts of the present case and the impugned judgment does not deserve any interference, the following decisions were cited:-
(i) Union of India and Others Vs. Anil Kumar Sarkar, (2013) 4 SCC 161;
(ii) W.P.(C) 7030/2013, "Union of India & Ors. Vs. Satyendra Kumar Singh" decided on 11.11.2013 by a Division Bench of the Delhi High Court; and
(iii) Union of India Vs. Ashok Kumar, 2018 SCC OnLine Del 8432
10. We have given our careful consideration to the arguments advanced by learned counsels for the parties, perused the record and examined the decisions cited by both sides.
11. To start with, it is deemed appropriate to examine the O.M. dated 14.09.1992, relied on by learned counsel for the petitioners to justify the decision of adopting the sealed cover procedure in respect of the petitioners. The said O.M. was issued by the DoPT on the subject of "Promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation". Placed below is the extract of the said O.M. W.P. (C) 10543/17 Page 7 of 22 relevant for the purpose of deciding the present petition:-
"1. The undersigned is directed to refer to Department of Personnel & Training O.M.No.22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.8.1991 of the Supreme Court in Union of India etc. Vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject (referred to in the margin). The procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this O.M. for their guidance.
2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.
i) Government servants under suspension
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for criminal charge is pending.
xxx xxx
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will W.P. (C) 10543/17 Page 8 of 22 be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also."
12. The aforesaid O.M. dated 14.09.1992 refers to an earlier O.M. dated 12.01.1988 issued by the DoPT that has been extracted in the case of R.S.Sharma (supra) and states as follows:-
"Cases where Sealed Cover Procedure applicable:- At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings.
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise."
13. In contra-distinction to the O.M. dated 12.01.1988, wherein the sealed cover procedure was directed to be adopted in four circumstances, in the subsequent O.M. dated 14.09.1992, the DoPT had recommended that the said procedure ought to be adopted only in three circumstances, as stipulated in clause 2. In other words, the fourth category which was mentioned in the O.M. dated 12.01.1998, W.P. (C) 10543/17 Page 9 of 22 that referred to a situation where the DPC was required to be informed if a government servant against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise, was in the zone of consideration for promotion, was deleted by the subsequent O.M. dated 14.09.1992.
14. In terms of the subsequent OM dated 14.09.1992 the parameters within which the DPC is required to adopt the sealed cover procedure in the case of a Government servant who falls within the zone of consideration for promotion has been limited to the following three categories:
(i) A Government servant who is under suspension;
(ii) A Government servant in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
(iii) A Government servant in respect of whom prosecution for criminal charges is pending.
15. Admittedly, in the instant case, when the name of the respondent No.1 had fallen within the zone of consideration for the DPC to examine on 05.06.2015, none of the aforesaid three situations/circumstances had arisen. The respondent No.1 was neither under suspension, nor had a charge-sheet been issued against him; nor were any disciplinary proceedings pending against him, much less a criminal charge for prosecution. As a result, after due consideration, the DPC had empanelled the respondent No.1 for promotion to the W.P. (C) 10543/17 Page 10 of 22 post of CIT and forwarded his name along with the others to the Competent Authority, namely, the ACC. It was only thereafter that the petitioners claim to have received some information from the Ministry of Home Affairs with regard to the first stage advice given by the CVC for initiating major penalty proceedings against the respondent No.1. We are informed that the reason behind initiating major penalty proceedings against the respondent No.1 was that he had given an NOC to a Trust that was in control of an enemy property situated in Mumbai for disposal through an open bid. Learned counsel for the respondent No.1 states on instructions that the said NOC had been issued by the respondent no.1 after receiving legal advice from the Ministry of Law and that he had not granted the said permission on his own accord.
16. Coming back to the O.M. dated 14.09.1992, we find that the same has been examined on different occasions in several decisions of the Supreme Court and the High Courts. In the landmark case of K.V.Jankiraman (supra), common questions had come for consideration relating to adoption of sealed cover procedure in service jurisprudence. The said questions of law were framed by the Supreme Court in the following words:-
"8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are:--(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 W.P. (C) 10543/17 Page 11 of 22 of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?' The ,'sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over'. Hence. the relevance and importance of the questions."
17. The first question framed above that is relevant here, i.e. from which date can it be said that disciplinary proceedings are pending against an employee, was answered by the Supreme Court as follows:
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a chargesheet 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 W.P. (C) 10543/17 Page 12 of 22 the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. 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 finalize 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.
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. "
18. In the year 2013, came the decision of the Supreme Court in the case of Anil Kumar Sarkar (supra), where aggrieved by his non- promotion, the respondent had approached the Tribunal for issuing directions to the Government to permit him promotion to Group „A‟ (junior scale) in the Indian Railways Account Service (IRAS). The said petition was, however, dismissed by the Tribunal. The dismissal order was challenged by the respondent before the Gauhati High Court that had allowed the said petition and directed that an order be issued promoting the respondent to the next higher post with all W.P. (C) 10543/17 Page 13 of 22 consequential benefits.
19. Union of India had challenged the decision of the Gauhati High Court before the Supreme Court. Taking note of the fact situation in the said case, where the DPC for making promotions was conducted on 26/27.02.2002 and the respondent‟s name was considered and placed in the select panel and further, his batch mates were promoted to IRAS up to 21.04.2003, by which time no criminal proceedings/departmental inquiry had been initiated against him, nor was the respondent placed under suspension, the Supreme Court had declared that when on the date when the respondent‟s batch mates had been promoted, admittedly he was not under suspension, no charge- sheet was served upon him, and nor he was facing any criminal prosecution, then the procedure laid down in clause 2 of the O.M. dated 14.09.1992 would have no application and the recommendations made by the DPC had to be honoured and the sealed cover procedure did not apply. Referring to the case of K.V.Jankiraman (supra), particularly para 16 & 17 thereof, the Supreme Court held that the principles laid down in the said judgment would be applicable depending on the fact situation of a case. It was further clarified that disciplinary proceedings commence only when a charge-sheet is issued and in that case, the Supreme Court held that no such proceedings had been initiated at the point in time when the name of the respondent was under consideration by the DPC. Further, the decision in R.N.Sharma (supra) was examined and a view was expressed by the Supreme Court that the same was not applicable to the facts of the case before it.
W.P. (C) 10543/17 Page 14 of 2220. In the case of Satyendra Kumar Singh (supra), a challenge was laid by the UOI to the order passed by the Tribunal, allowing an Original Application filed by the respondent therein for seeking promotion from the date when his juniors had been promoted. The facts of the said case reveal that, on 09.01.2012, a DPC had met in the UPSC for making promotions to the grade of Commissioner of Customs and Central Excise on an adhoc basis and the name of the respondent was considered and recommended as „fit‟ for promotion to the subject grade, on an adhoc basis. When the matter went to the ACC for approval, the respondent‟s name was not approved on the ground that by then, the CVC had given an advice on 16.06.2011, for initiating major penalty proceedings against him. Subsequently, on 22.02.2013, major penalty charge-sheet was issued against the respondent. Aggrieved by the fact that persons junior to him had been promoted as Commissioners whereas he had been excluded, the respondent had approached the Tribunal for relief. Relying on the judgment in the case of Union of India & Ors. vs. Sangram Keshari Nayak (2007) 6 SCC 704, the Tribunal allowed the Original Application filed by the respondent.
21. The decision of the Tribunal was challenged by the Union of India before a Division Bench of this court where a plea was taken that the facts of the said case were covered by the decision of the Supreme Court in R.S.Sharma‟s case (supra) and of the High Court in C.P.Gupta‟s case (supra). On perusing the instructions issued by the DoPT in the O.M. dated 14.09.1992, the Division Bench opined that what is relevant is that a charge-sheet under the rules must have been W.P. (C) 10543/17 Page 15 of 22 issued against the concerned officer for placing the recommendations of the DPC in a sealed cover and in the said case, that has not been done. Instead, the charge-sheet was issued against the respondent therein only in February 2013, whereas the DPC had been convened a year prior thereto, in January, 2012. As a result, it was held that the respondent had wrongly been denied promotion, more so, when persons junior to him had been promoted. In this context the following observations made by the Division Bench are apposite:-
"12. In the case in hand, the DPC was convened in January 2012 and the promotion order was issued on June 25, 2012. The charge-sheet was issued much later only on February 22, 2013. There was no impediment on the date when promotion order issued against the respondent from being promoted. Mere pendency of investigation is no ground for denying the promotion to the respondent. It appears that it was for this reason that the DPC (UPSC) had not put the recommendations in sealed cover. In fact his name was sent to the ACC for approval which did not approve it but had sought certain clarifications about the action taken against the respondent after CVC‟s advice. The net effect has been that the respondent was not promoted. In so far as the case of C.P.Gupta is concerned, this Court was of the view that C.P.Gupta‟s case is similar to that of R.S.Sharma‟s case (supra). We need not say anything further as we have already distinguished the case of R.S.Sharma‟s case (supra) with the case in hand. The judgment relied upon by the petitioners in C.P.Gupta‟s case (supra) as such would not have any relevance. Rather this is a case which is also covered by the judgment of the Supreme Court in Anil Kumar Sarkar‟s case (supra). In that case the respondent Mr.Anil Kumar Sarkar while working as Senior AFA a DPC was convened by the UPSC on February 26, 2002 and W.P. (C) 10543/17 Page 16 of 22 February 27, 2002 to consider eligible Group B officers of the Accounts department for their substantive promotion to Group A (junior scale of IRAS). Four memorandum of charges were issued to Mr.Anil Kumar Sarkar out of which two were issued on August 13, 2003 and others were issued on September 01, 2003 and November 05, 2003."
22. In the captioned case, the Division Bench had distinguished the decision in R.S.Sharma (supra) on the fact circumstances discussed in para 13 of the said decision and concluded that none of the circumstances referred to in clause 2 of the O.M. dated 14.09.1992, were applicable at the time when the recommendations were made in respect of the respondent before it and only after the Tribunal had passed an order in his favour, that the competent authority had decided to initiate disciplinary proceedings against him. Consequently, the writ petition filed by the Union of India was dismissed and directions were issued to grant promotion to the respondent therein with immediate effect, on an ad-hoc basis, as was prayed for.
23. In the case of Ashok Kumar (supra) decided by this court as recently as on 10.04.2018, we had dismissed a petition filed by the Union of India against a judgment dated 16.01.2017, passed by the Central Administrative Tribunal allowing an original application filed by the respondent therein who was also working on the post of an Additional Commissioner in the Income Tax Department and was granted promotion to the post of Commissioner Income Tax reckoned from the date when his juniors had been promoted. In the said case, a DPC was constituted to consider promotion of eligible officers to the W.P. (C) 10543/17 Page 17 of 22 post of CIT in the year 2015, for the vacancy year 2014-2015. The respondent therein and Shri Dinesh Singh respondent No.1 before us were both empanelled along with other officers. The name of Ashok Kumar was recommended for promotion and placed before ACC. While conveying its approval for his appointment, the ACC had directed the DoP&T to expedite taking a decision on the pending complaints against him and six other officers and including, the respondent No.1 in this petition and re-submit their cases for the consideration of the ACC at the earliest.
24. Aggrieved by the said decision of the ACC, the respondent therein had approached the Tribunal and contended that his name had duly figured in the proposal placed before the DPC, he had been found fit and was recommended for promotion to the post of CIT. But at the time of issuing the promotion order on 16.09.2015, his name was wrongfully excluded whereas the names of two other officers, who were junior to him, had been recommended for promotion to the post of CIT. On examining the instructions issued in the OM dated 14.09.1992, and taking note of the decision in the case of K.V.Jankiraman (supra) and finding that the Union of India had not initiated any departmental proceedings against the respondent therein by charge-sheeting him for possessing disproportionate assets to the tune of over `9 lakhs, as alleged and nor were any departmental proceedings pending against him on the date when the DPC was held, this Court had confirmed the decision of the Tribunal and dismissed the writ petition filed by the UOI.
25. In the instant case, as noted above, when the DPC was held on W.P. (C) 10543/17 Page 18 of 22 05.06.2015, for making recommendations for promotion to the post of CIT, the name of the respondent No.1 was duly included in the list of eligible candidates and he was found „fit‟ for being promoted. At that point in time, admittedly, none of the three categories carved out clause 2 of the O.M. dated 14.09.1992, were available to the petitioners to exclude the name of the respondent No.1 and adopt a sealed cover procedure for him. The respondent No.1 was neither under suspension, nor had he been chargesheeted by the Department, nor were any criminal proceedings pending against him. After the respondent No.1 was assessed by the DPC for suitability, his name had been forwarded to the Competent Authority, namely, the ACC for making promotions. It was only at that stage that the ACC had desired to know the status of any complaint pending against the respondent No.1. By that time, the Ministry of Home Affairs had intimated the petitioners that it had received the first stage advice by the CVC on 26.06.2015, for initiating major penalty proceedings against the respondent No.1. It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent No.1. The position remained the same when the O.A. filed by the respondent No.1 was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted.
W.P. (C) 10543/17 Page 19 of 2226. Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. As has been held in K.V.Jankiraman (supra), the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15.
27. We are of the opinion that the decisions cited by learned counsel for the petitioners in the case of Syed Naseem Zahir (supra) and C.P.Gupta (supra) are clearly distinguishable on facts and would not take their case further. In the case of Syed Naseem Zahir (supra), the Supreme Court had taken note of the gravity of the charges levelled against the respondent therein that had resulted in heavy financial losses to the State Government. Having regard to the fact that an inquiry report had already been received, a view was taken that the events subsequent to the meeting of the DPC, could not be ignored. Thus, the appeal filed by the State of Madhya Pradesh was allowed by the Supreme Court with a caveat that in the event the respondent therein was completely exonerated, then the sealed cover would be opened and if the recommendation were in his favour, then he would be notionally promoted from the date when persons junior to him were promoted to the subject post, with all consequential benefits.
28. As for the case of the C.P.Gupta (supra), yet again, the fact W.P. (C) 10543/17 Page 20 of 22 situation in the said case was different. In the said case, the petitioner was served with a chargesheet on 07.12.2005, whereas the DPC was convened earlier thereto, on 12.07.2005. The petitioner was allegedly involved in mishandling of the execution of contracts and misappropriation of public funds to the tune of `2.6 crores. Again, a Division Bench of this court had the occasion to examine the instructions issued in the O.M. dated 14.09.1992, in particular clause 7 thereof, and it was held that the petitioner therein had not been actually „promoted‟, as promotion comprised of three ingredients i.e. selection by the DPC, acceptance of the recommendations of the DPC by the competent authority and the officer joining his post in furtherance of the promotion order. Taking note of the fact that though the petitioner therein had been selected vide letter dated 30.08.2005, but the said letter was a conditional one and became operative at the earliest, on 01.09.2005, or on a later date when he would assume charge of the post, a Division Bench of this court had opined that if any of the three steps mentioned above are kept in abeyance, then it would not amount to granting actual promotion to the employee. It was in those facts and circumstances that it was held that once the disciplinary authority passes an order, the said order has to be read in its entirety and therefore, non-issuance of a letter of posting and non-joining by the petitioner therein, would come in his way for seeking an actual promotion. We are of the opinion that the fact situation in the instant case is entirely distinguishable and the said decision is not of any assistance to the petitioner/UOI.
29. In view of the totality of the facts and circumstances of the W.P. (C) 10543/17 Page 21 of 22 present case and the legal position discussed above, we do not find any illegality, arbitrariness or infirmity in the impugned judgment dated 12.05.2016, that warrants interference in judicial review. Accordingly, the present petition is dismissed as being devoid of merits. The petitioners are directed to implement the impugned judgment within six weeks from today. The parties are left to bear their own costs.
HIMA KOHLI, J.
PRATIBHA RANI, J.
MAY 28, 2018 „pg/hkaur/st‟ W.P. (C) 10543/17 Page 22 of 22