Central Administrative Tribunal - Chandigarh
Ashok Kumar Saini S/O Late Shri Atma Ram vs Union Of India on 8 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.NO.293-HR-2013 Orders pronounced on: 8.10.2013 M.A.No.342/13 & 1325/13. Orders reserved on: (1.10.2013). CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) & HONBLE MS. RAJWANT SANDHU, MEMBER (A) Ashok Kumar Saini S/o late Shri Atma Ram, working as Deputy Superintendent of Police, 3rd Battalion, HAP, Madhuban (Karnal), R/o House No. 6, Offices Colony, Sirsa Road, Hisar (Haryana). Applicant By : Mr. Girish Agnihotri, Sr. Advocate with Mr. Vijay Pal, Advocate. Versus 1.Union of India, Ministry of Home Affairs through its Secretary, Government of India, New Delhi. By : Mr. Rakesh Verma, Advocate. 2.Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi. By : Mr. B.B. Sharma, Advocate. 3.State of Haryana through its Chief Secretary, Government of Haryana, Haryana Civil Secretariat, Chandigarh. 4.The Additional Chief Secretary to Government of Haryana, Home Department, Haryana Civil Secretariat, Chandigarh. By : Mr. Dhirender Shukla, Advocate. Respondents O R D E R
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) By means of the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved against the action of the respondent State of Haryana in withholding his Integrity Certificate. He has further sought issuance of a direction to the respondents to induct the applicant into IPS as per the Select List prepared by the Selection Committee in its meeting held on 20.12.2012 and 1.2.2013. He has also sought a direction from this Tribunal commanding the respondents to keep the name of the applicant on the Select List beyond 60 days from the date of approval by the Union Public Service Commission as the applicant has been found eligible and suitable but his name has been provisionally considered for want of Integrity Certificate which has been withheld without any valid and justified reason.
2. The facts are to be noticed first. The applicant is a Member of State Police Service. He was confirmed as Deputy Superintendent of Police on 5.9.1999. It is the case of the applicant that he is having spotless and unblemished service record throughout his career i.e. why the Director General of Police has recommended his case for extension in service beyond the age of 55 years, vide letter dated 19.1.2009. Considering the unblemished service record of the applicant, his name was considered for induction into IPS as per the provisions of Indian Police Service (Appointment by Promotion ) Regulations, 1955 (for brevity 1955 Regulations) by the State Government and his name was forwarded to the Government of India for consideration and it was considered by the Union Public Service Commission ( for short UPSC ) for its meeting held on 20.12.2012 and 1.2.2013 against ten (10) vacancies for the year 2011.
3. The UPSC considered the name of the applicant on provisional basis, as his name was at sr.no.3 in the eligible list furnished by the State Government, subject to furnishing of Integrity Certificate by the State Government. The recommendation of the Selection Committee was sent to the State Government, vide communication dated 14.2.2013 for their observation on the same under Regulation 6 of 1955 Regulations and to the Government of India under Regulation 6 (i) of 1955 Regulations. Though the relevant observation has been received from the State Government, however, the recommendations of the Government of India, Ministry of Home Affairs, is yet to be received. Therefore, the Select List of 2011 for promotion to the IPS of Haryana cadre is yet to be approved by the Commission. In furtherance, Shri Girish Agnihotri, the learned Senior counsel for the applicant vehemently argued that the action of the respondents in withholding the Integrity Certificate is without jurisdiction. Once the applicant was found eligible for induction into IPS from the State Service in view of Regulations 1955, the State Government cannot withhold the Integrity Certificate for any reason. To elaborate his argument, he submitted that till today no reasons have been communicated to the applicant for withholding of the Integrity Certificate.
4. However, the applicant has oppression that the same might have been withheld as two FIRs i.e. FI R No.54 dated 9.1.2009 and 319 dated 27.5.2009 are pending in which the applicant has been mentioned as one of the accused. He submitted that in view of the law laid by the Honble Supreme Court in the case of Union of India Vs. K.V. Jankiraman etc. AIR 1991 SC 2010, the conduct and service record of an employee is to be seen before or up to the date when the Select Committee meets. Even otherwise, he submitted that in both the FIRs, the prosecution sanction against the applicant has been stayed by the Honble High Court. Therefore, he submitted that even that ground is not available with the respondents for withholding the Integrity Certificate. He further submitted that the reply of the State Government is also silent on the issue as to how and in what manner, the Integrity Certificate can be withheld by the Respondent State. A very vague reply has been filed.
5. Learned counsel further submitted that he has been able to lay his hands on the instructions dated 21.5.1975 issued by the State of Haryana which deals with the subject of withholding of the Integrity Certificate. He submitted that these instructions help the applicant. It has been emphasized therein that, if in the reports for the preceding ten years in respect of the post from which he is to be promoted, a doubt has been expressed regarding the honesty, he should not be promoted. This is the criteria for issuance of integrity certificate. In the case of the present applicant, no doubt has been expressed by the State Government with regard to the integrity of the applicant, rather, the case of the applicant has been recommended by the Director General of Police, for extension beyond 56 years which itself reflects that the service record of the applicant is excellent and for that reason, his case has been recommended and included in the eligibility list for consideration by the UPSC, for induction into IPS. He further submitted that even the UPSC has issued guidelines/procedure dated 27.2.2012 for categorization of State Civil/Police/Forest Service Officers and preparation of a list of suitable Officers by the Selection Committee for promotion to the Indian Administrative Service, Indian Police Service, Indian Forest Service in terms of Regulation 5(4) and 5(5) of the Promotion Regulations, which also helps the applicant.
6. In response to the O.A., the UPSC (Respondent No.2 ) has filed a written statement, wherein they have submitted that UPSC being a Constitutional Body, discharges its functions, duties and Constitutional obligations assigned to it under Article 320 of the Constitution of India. Further, as per Regulation 5(1) of the Regulation, 1955, the number of vacancies against which the selection is to be made for a particular recruitment year for promotion to the Indian Police Service of a State Cadre is to be determined by the Government of India in consultation with the concerned State Government. Thereafter, the State Government forwards the proposal to the Commission along with the seniority list, eligibility list ( upto a maximum of three times the number of vacancies) Integrity Certificates, Certificates regarding disciplinary/criminal proceedings, certificate regarding communication of adverse remarks, details of penalties imposed on the eligible officers and ACR dossiers of the eligible officers.
7. It is further submitted in para no.6 that the Selection Committee meeting was held on 20.12.2012 and 1.2.2013 for promotion of State Police Officers to IPS of Haryana Cadre for select list of 2011 against 9 vacancies. The said Selection Committee considered the name of the applicant whose name was at sr.no.3 in the eligible list furnished by the State of Haryana. The recommendation of the Selection Committee was forwarded to the State Government on 14.2.2013 for their observations on the recommendations made in terms of Regulation 6 of IPS Regulation 1955 and to the Government of India under Regulation 6(A). The observations on the recommendation has been received from the State Government. However, the observations of the Government of India, MHA has not yet been received. Therefore, the Select list of 2011 for promotion to IPS from Haryana State Cadre is not yet been approved by the Commission.
8. The State of Haryana has filed its separate written statement on behalf of respondents no.3 & 4 wherein they have taken a stance that issuance of Integrity Certificate is the sole discretion of the State Government. There is ample incriminating/adverse material and evidence on the basis of the investigation carried out by the Special Investigation Team, against the applicant as such the State Government has decided to withhold the Integrity Certificate. Pendency of FIR No. 45 dated 10.1.2009 and 319 dated 27.5.2009 is also a ground for withholding the Integrity Certificate.
9. Shri B.B.Sharma, learned counsel appearing on behalf of UPSC has reiterated what has been stated in the written statement.
10. Shri Shukla, learned Deputy Advocate General, appearing on behalf of State of Haryana has also reiterated what has been stated in the written statement. Apart from that, he submitted that it is the sole discretion of the State Government to issue the Integrity Certificate or not.
11. We have considered the rival submissions of the learned counsel for the parties and have perused the pleadings available on record with their able assistance.
12. The question arises herein for our consideration and determination is as to whether the State Government can withhold the Integrity Certificate or not more so when nothing is found against an officer. Before adverting to the sole question involved, it is relevant to state here the procedure laid down under the 1955 Regulations. Admittedly, the case of the applicant was recommended by the State Government and included in the eligibility list for induction into IPS against 9 vacancies for the year 2011 in the meeting held on 20.12.2012 and 1.2.2013. It is clear from the pleadings that the case of the applicant was not sent for induction into IPS on the ground that the State Government has withheld the Integrity Certificate.
13. From the written statement filed by the State of Haryana, it can safely be concluded that they have not quoted any instructions or rule which empowers them to withhold the Integrity Certificate nor any circumstances have been explained to us which would have warranted withholding of relevant certificate. The only inference can be drawn is that the pendency of two FIRs against the applicant, is the sole basis for withholding of the Integrity Certificate. Otherwise, they would have whispered in the written statement if there was any departmental proceedings pending against the applicant.
14. In FIR No.319 dated 27.5.2009, the applicant approached the Honble High Court by way of Cr. Misc. No. 8720-M of 2011 and the Honble High Court vide its order dated 23..3.2011 had stayed the prosecution sanction against the applicant , which continues till date. Simultaneously, in another FIR No.45 dated 11.1.2009, the applicant again approached the Honble High Court by way of Cr. Misc. No.11587-M of 2011 wherein also the same interim order has been granted as in Cr. Misc. No. 8720-M of 2011. Meaning thereby that in both the FIRs pending against the applicant, the prosecution sanctions have been stayed. As submitted by the learned counsel for the applicant, the stay order is still operating which fact has not been disputed by the learned counsel appearing for the State of Haryana.
15. The instructions dated 21.5.1973 deal with officers who are not to be promoted. It provides that an Officer/officials whose integrity is constituted to be doubtful should not be brought on the slab of suitable officers/officials and should not be promoted. The relevant para reads as follows :-
Government have considered the matter further and have decided that the criteria to determine the honesty/integrity also of an officer/official should be that if in reports for the preceding ten years in respect of the post from which he is to be promoted, a doubt has been expressed regarding the honesty, he should not be promoted, if the total number of annual confidential reports in respect of the post from which he is to be promoted is less than 10 years reports in respect of the next lower post should be examined so that the total number of reports taken into consideration are at least for a period of ten years. In case the total number of annual reports in respect of the post from which he is to be promoted is more than ten years a doubt has been expressed regarding his honesty in any report which is more than ten years old then keeping in view his overall performance in latest ten reports, it will be open to the appointing authority to ignore the adverse remarks relating to doubtful integrity in reports which are more than 10 years old and to include the same in the slab of three suitable officers/officials other conditions with regard to suitability. The above criteria for judging the honesty of officers/officials will also be applicable in those cases where promotion is made to posts or higher scale of pay ( such as selection grade of Haryana Civil Services Executive Branch) not on the principle of slab of three suitable officers/official; but strictly be selection, according to the provision made in the relevant service rules.
16. A perusal of the above extraction makes it clear that if any doubt regarding the honesty and integrity of an officer is caste preceding ten years from the date when an employee is to be considered for promotion, then the certificate can be withheld. The guidelines/procedure dated 27.2.2011 issued by the UPSC under 5.2(D) lays down the treatment of Integrity Certificate/Departmental Proceedings/Criminal Proceedings etc. Para 6 reads as under :-
6. The name of the officer, whose integrity certificate has been withheld by the State Government or against whom departmental or criminal proceedings are pending may be included in the Select List by the Selection Committee provisionally subject to grant of integrity certificate or clearance in the departmental or criminal proceeding. If the Selection Committee finds the officer as otherwise suitable for promotion on the basis of an overall assessment of his ACRs as per the procedure indicated in the paragraphs 4.1 to 4.5 above. The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer in disciplinary proceedings or filed in a court of law in criminal proceedings, as the case may be.
17. A perusal of the above instructions would reveal that, an officer whose Integrity Certificate has been withheld by the State Government and against whom a departmental/criminal proceedings is pending, he may be included in the Select List by the Selection Committee provisionally, subject to Integrity Certificate or clearance in the departmental or criminal proceedings.
18. Concededly, there is no departmental proceedings pending against the applicant. Above mentioned two FIRs are pending against the applicant against which he has approached the Honble High Court wherein the prosecution sanction has been stayed. Meaning thereby, as on date, there is no criminal proceedings pending against the applicant because it is settled law that the criminal case is said to be pending on the date when the charges have been framed in the Criminal Court of law by taking cognizance thereof.
19. A learned Coordinate Bench of this Tribunal i.e. C.A.T. Ahmedabad Bench in A.D. Khadtare vs Union Of India and Ors. decided on 17 July, 2001 has thrashed the issue of denial of consideration for promotion on the ground of issuance of prosecution sanction etc. at threadbare holding as under :-
8. So far the sealed cover procedure adopted by the respondents is concerned, the law in this regard is well settled in view of the decision of the Supreme Court in Union of India v. K.B. Jankiraman and various decisions thereafter. The DPC could have adopted the sealed cover procedure, if the applicant on the date on which the DPC met was facing any departmental proceedings or was under suspension or a charge sheet in a criminal Court was filed against him. If none of the above mentioned factors were in existence, then, it was not open for the DPC to adopt the sealed cover procedure for the applicant. Since none of the above contingencies were in existence so far the case of the applicant was concerned when the DPC met, the DPC had rightly selected the applicant and placed him on panel for promotion. In the case of Union of India v. Dr. (Mrs.) Sudha Salhan, 1998(5) SLR 473, relying on the decision in the case of K.B. Jankiraman, (1991) 4 SCC 109, the Supreme Court has observed as under:--
"4. The question, however, stands concluded by a Three-Judge decision of this Court in Union of India and Ors. v. K.B. Jankiraman and Ors., 1991(4) SCC 109 : [1991 (5) SLR 602 (SC)] in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendations of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendations of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."
These observations stipulates that the recommendations of the Departmental Promotion Committee can be placed in sealed cover only and only if some departmental proceedings were pending or initiated or any criminal charge sheet had been filed and the criminal trial was pending or such person was under suspension. The sealed cover procedure is nowhere contemplated in the case of sanction to prosecute. In the O.M. dated 14.9.92 of the Govt. of India, the sealed cover procedure is neither contemplated nor recommended in the cases where sanction for prosecution is granted. The reason is obvious. The sanction for prosecution may or may not result into the filing of the charge sheet against the accused and on subsequent criminal trial, the agency who has obtained the sanction for prosecution may on the receipt of further evidence decide of not filing the charge sheet against the accused person. The Govt. may also subsequently revoke the sanction for prosecution. The same can also be set aside by the Courts if challenge therein. Hence a sanction for prosecution does not bring a Govt. servant, against whom the same is obtained, under a cloud. His promotion can be withheld only if the sanction for prosecution is ultimately converted into a criminal charge sheet against him and the charge sheet is filed in the criminal Court. Merely because the sanction for prosecution is obtained against a particular Govt. servant, he cannot be debarred from getting his due promotion, all the more when he is found suitable for the same and selected by the DPC. We are therefore of the opinion that it was not open to the respondents to adopt sealed cover procedure and keep the name of the applicant in sealed cover when his turn for promotion had come. We also hold that the adoption of the sealed cover procedure by the respondents in the case of the applicant was contrary to the guidelines issued in this regard and contrary to the settled law in this regard. Since there was no other reason for not promoting the applicant to the post of Commissioner, Central Excise and Customs, we hold that the action of the respondents in not promoting him when his turn came was clearly arbitrary and illegal.
20. Following the aforesaid decision, even this bench of the Tribunal took similar view in O.A.No.436-PB-2012 Maninder Pal Singh Vs. Union of India & Others decided on 26.9.2013, in which it has been held as under :-
17. The observation made by a co-ordinate Bench of this Tribunal clinches the issue in favour of the applicant. In this case apparently on the crucial date i.e. 25.1.2011 when the DPC met, there was nothing against the applicant and as such a consideration for promotion could not be denied to him. The Kerala High Court in OP (CAT) No. 4305 of 2011 - Union of India etc. Vs. Thottathil B. Radhakrishnan & Others, while considering the O.M. dated 14.9.1992 has held that the question of a Government servant being treated as one against whom prosecution for criminal charge is pending would arise only depending on the question whether the Court had framed charge against the employee at any time before the DPC in question. The Honble High Court held that Tribunal had rightly held that on relevant date when the DPC considered them for promotion there was no criminal case pending against them. This finding cannot be found fault with on ground that there is an erroneous interpretation of the applicable laws concerned or on any ground of jurisdiction. Qua point of prosecution sanction a co-ordinate Bench of this Tribunal in O.A.No. 2682/2010 P.S. Narang Vs. Govt. of NCT of Delhi & Others decided on 20.10.2010 has held that only because of prosecution sanction, promotion to an employee cannot be denied. It was held that prosecution sanction is not an impediment for denying promotion to an employee, which is his fundamental right guaranteed under the Constitution of India. (emphasis ours)
21. In the light of the above judicial pronouncement coupled with the instructions dated 21.5.1973 and the guidelines issued by the UPSC, we conclude that withholding of Integrity Certificate by the State of Government in the case of present applicant is unwarranted and cannot be sustained in the eyes of law. As discussed above, no disciplinary proceedings have either been initiated nor any criminal case can be said to have begun or pending as no charge-sheet has been filed in those two named FIRs and naturally so when prosecution sanctions have already been stayed by the Honble High Court. According the action of the State of Haryana in withholding the integrity certificate is invalidated.
22. In view thereof this O.A. is allowed. We direct the respondents to issue the Integrity Certificate in favour of the applicant within fifteen days from the date of receipt of copy of this order and take further action as per rules and law in the relevant behalf.
23. The OA stands allowed in the above terms. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh Dated: 08.10.2013 KK/HC*