Central Administrative Tribunal - Hyderabad
Between vs Bani Singh (1990 Supp 738); Also On The ... on 3 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH:
HYDERABAD
ORIGINAL APPLICATION NO.286 OF 2008
DATE OF ORDER: 3rd DECEMBER, 2008
BETWEEN:
SHRI M.G.GOPAL, I.A.S.,
S/O M.B.I.Sharma,
Aged about 50 years,
Secretary to Governor of Andhra Pradesh,
Rajbhavan, Hyderabad.
.. APPLICANT
AND
1. The State of Andhra Pradesh represented by
the Chief Secretary, A.P.Secretariat,
Hyderabad,
2. Union of India represented by the
Secretary to Government,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
New Delhi.
(2nd Respondent was impleaded as per Order in
M.A.No.271/2008 dated 21.8.2008)
RESPONDENTS
COUNSEL FOR THE APPLICANT: Shri V.Venkateswara Rao, Advocate
COUNSEL FOR THE RESPONDENTS: Shri G.Jaya Prakash Babu, Sr.CGSC
Shri D.Y.Setty, SC for A.P.State
CORAM:
HON'BLE MRS. BHARATI RAY, MEMBER (JUDL.)
HON'BLE MR. HRIDAY NARAIN, MEMBER (ADMN.)
ORDER
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.) The present OA was filed by the applicant praying to direct the respondents to consider the case of the applicant for promotion to the 'Above Supertime Scale of IAS' by opening the sealed cover reported to have been adopted in the case of the applicant in 2007 when his batch-mates were considered and further direct the respondents to promote him to the said scale not withstanding the pendency of CC No.15/04 (FIR No.07(A)/97) in the court of Special Judge for CBI cases, Visakhapatnam, if found fit, with all consequential benefits such as seniority, arrears of pay etc.
2. The brief facts of the case, as stated by the applicant in the OA, are that the applicant belongs to 1983 batch of IAS Officers. Presently he is working as Secretary to Governor of Andhra Pradesh in the Supertime Scale of pay of Rs.18400-22400. The next promotion is to Above Supertime Scale i.e., Rs.22400-24500 as per the IAS Promotion Rules. The applicant states that he is fully qualified and eligible to be promoted to the 'Above Supertime Scale'. However, because of the pendency of CC No.15 of 2004 (FIR No.07(A)/97) in the court of Special Judge for CBI cases, Visakhapatnam, wherein he was shown as Accused No.2, he is being ignored for promotion and more than 20 junior batch- mates to him were promoted so far superseding him.
3. The applicant while working as District Collector, Visakhapatnam from June 1995 to May 1997, conducted Negotiation Committee Meeting on 4.10.1995 according to the provisions of the A.P.Land Acquisition (Negotiation-Committee) Rules, 1992 by following the procedure laid down therein to settle the land acquisition case of Visakhapatnam Port Trust which was pending for about 20 years by then. The applicant states that the said act is purely bonafide and he has not committed any breach of rules or regulations in that connection. As per the directions issued by the Hon'ble High Court of Andhra Pradesh in CC No.1515/97 in W.P.No.11754/94 on 18.2.1997, Mr.V.K.Srinivasan, IAS, Special Chief Secretary to Government and Chairman, Commissionerate of Inquiries was appointed to inquire into the following two issues:
1)Whether the lands measuring Acs. 18.38 cents situated in Survey Nos3/1, 3/2 and 4 of Kancherlapalem Village of Visakhapatnam Mandal and district are Government Banjar lands ?
2)Whether during the proceedings under the Urban Land (Ceiling & Regulation) Act, 1976 and the Land Acquisition Act, the officials of the concerned departments have taken proper steps to safeguard the interests of the Government or whether there were any lapses and if so to find out the officials who were responsible for such lapses ?
4. According to the applicant, Sri Srinivasan conducted inquiry and gave the following findings:
1) The lands in question were not Government Banjar lands.
2) The officials in question acted in a proper manner and with due care. However, there was one case of delay in filing appeal on the part of a Secretariat official. As regards payment of compensation on land acquisition side, the officials have followed the procedure prescribed under Section 23 of Land Acquisition Act, 1894 as amended in 1984.
Thereafter the CBI registered FIR on 7.4.1997 and filed case No.RC.7(A)/97 before the CBI, Visakhapatnam. In this case, the accusation against him is that he conducted negotiation meetings on 4.10.1995 in respect of lands under land acquisition for the Visakhapatnam Port Trust and that he had shown haste in settling the compensation to the land owners. In fact according to the applicant, the acts which he performed were routine actions for a District Collector and such actions are now being called offences under Prevention of Corruption Act and IPC, which is totally unwarranted. Even after a lapse of 10 years, the CBI case has not yet been decided. According to the applicant, the allegations against him are not of such a grave nature that his promotion should be adversely affected. The delay in finalisation of CBI case cannot be attributed to him and, therefore, there is no reasonable basis for withholding his promotion.
5. The applicant has claimed in the OA that in the Public Interest Litigation filed by Visakhapatnam Seva Samiti, the State Government had clearly stated that he had not committed any wrong and that suspicion had arisen because of a wrong report submitted to the Court by the then Police Commissioner, Visakhapatnam with whom the applicant had certain differences.
6. The applicant has relied upon the judgement of the Hon'ble Supreme Court in the case pf State of Madhya Pradesh Vs Bani Singh (1990 Supp 738); also on the judgement of the Hon'ble Supreme Court in the case of State of A.P. Vs N. Radhakishan reported in (1998) 4 SCC 154 and also on the judgement of the Hon'ble Supreme Court in the case of P.V. Mahadevan Vs M.D., Tamilnadu Housing Board (CDJ 2005 SC 592 ) and has contended that the law laid down regarding departmental proceedings was equally applicable to CBI cases. It is submitted in the OA that having regard to the nature and substance of charges against him, denial of Above Super Time Scale to the applicant was unfair and arbitrary.
7. The applicant has also stated that the State Government had rejected the request of CBI for sanction of Prosecution under Section 197 (4) CRPC without which the Hon'ble Special Judge for CBI Cases cannot take cognizance of the offences and conduct trial against the applicant. The CBI however has obtained permission from Government of India for prosecution under Prevention of Corruption Act. Thereafter, the charge sheet had been filed against the applicant alleging offences under Indian Penal Code and Prevention of Corruption Act but such action was totally illegal. The applicant has submitted in the OA that pendency of the CBI case cannot be a bar for his promotion to the Above Super Time Scale of Pay along with his batchmates.
8. It is the contention of the applicant that the initiation of criminal proceedings against him is totally illegal, arbitrary and without jurisdiction. Since the State Government had not granted sanction to prosecute the applicant, the criminal proceedings pending against him are void-ab-initio. More than 11 years had passed since the initiation of criminal proceedings and delay in finalisation of the same was not attributable to the applicant. In these circumstances, denial of promotion to the applicant to the Above Super Time Scale of Pay along with his batchmates was violative of Articles 14 & 16 of the Constitution of India.
9. In the OA, the applicant has further submitted that in similar circumstances, the Chandigarh Bench of the Central Administrative Tribunal, by its order dated 15.9.2004 in OA No.617/PB/2000, directed the respondent No.5 therein be given the benefit of being placed in the select panel of the year 1999-2000 without taking into consideration of the pendency of the criminal case which was registered against him on 18.4.1994 and his promotion should be subject to the outcome of the result of the criminal case pending against him and that such promotion on provisional basis could be cancelled in the event of conviction in the pending criminal case. The said Order of the C.A.T., Chandigarh Bench was confirmed by the Hon'ble Supreme Court of India in C.A.No.1586/2006 vide its order dated 8.3.2006 reported in 2006-AIR(SC)-0-1484 in the case of Gurpreet Singh Bullhar Vs. Union of India).
10. The respondents have filed reply statement on 19.6.2008 stating that the case of the applicant for promotion to the 'Above Supertime Scale of IAS' has been considered by the Screening Committees which met on 28.4.2007 and 29.4.2008 and placed its recommendation in a sealed cover since a criminal case is pending against him. It is stated that based on the directions of the Hon'ble High Court, the CBI has conducted inquiry into the allegations of irregularities in payment of compensation to the lands acquired for Visakhapatnam Port Trust, Visakhapatnam. The CBI has submitted a report and requested the State Government to accord sanction of prosecution under 197 Cr.P.C. against the applicant. When the matter was under examination, the Government of India, vide proceedings dated 2.12.2003 issued prosecution orders against the applicant under Section 19(1) of the Prevention of Corruption Act, 1988. Subsequently, the State Government rejected the request of the CBI to prosecute the applicant under Section 197(2) of Cr.P.C., vide letter dated 1.10.2007. It is further stated that the Criminal Prosecution Case pending against the applicant is in regard to the payment of higher compensation to the lands acquired for the Visakhapatnam Port Trust, Visakhapatnam under Section 19(1) of Prevention of Corruption Act, 1988 along with Dr.Vijay Kumar, IAS, the then Joint Collector, Visakhapatnam. The CBI filed FIR in Case No.15 of 2004 which was registered on 7.4.1997 and the said case is pending before the Special Court for CBI, Visakhapatnam. It is further stated that according to para 11.1 of Promotion guidelines issued by the Government of India vide letter dated 28.3.2000, the Screening Committee shall assess the suitability of the officers coming within the purview of the (a) Officers under suspension; (b) Officers in respect of whom a charge sheet has been issued and disciplinary case is pending; and (c) Officers in respect of whom prosecution for criminal charge is pending, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution which is pending and the assessment of the Committee will be kept in a sealed cover. As per Para 18 of the said guidelines, the sealed cover shall be opened on conclusion of the disciplinary case/criminal prosecution. It is further stated that the Screening Committee that met on 28.4.2007 to consider the cases of IAS officers of 1983 batch and on 29.4.2008 to consider the cases of 1984 batch for promotion to 'Above Supertime Scale of IAS', found that the prosecution case is still pending against the applicant and placed its recommendations in sealed covers in terms of Para-11 of Promotion Guidelines issued by Government of India, dated 28.3.2000. While requesting the State Government vide his letter dated 27.11.2007 to promote him to the 'Above Supertime Scale of IAS', the applicant admitted that the FIR in the CBI Case NO.15 of 2004 was registered on 7.4.1997 and thus the criminal proceedings are pending against him. The CBI filed the charge sheet in the above case under Section 19(1) of the Prevention of Corruption Act, 1988 which is pending before the Special Court for CBI, Visakhapatnam. Unless the criminal prosecution case is disposed of, the case of the applicant cannot be considered for promotion to the 'Above Supertime Scale'. On conclusion of the criminal prosecution only, the sealed covers containing the recommendations of the earlier Screening Committees which considered the case of the applicant will be opened and his case will be considered based on the recommendations kept in the sealed covers as per Para 18 of the Promotion Guidelines. The respondents further state that according to para 20 of the promotion Guidelines, ad hoc promotions are not to be allowed in the case of All India Service officers even if the disciplinary case/criminal prosecutions instituted against them are found to have been prolonged.
11. The applicant has filed rejoinder on 3.7.2008 reiterating the submissions made in the OA. It is stated that the placement of the recommendations of the screening committees which met on 28.4.2007 and 29.4.2008 regarding his promotion to the 'Above Supertime Scale' in the sealed covers is illegal and arbitrary. Such an action is unwarranted since the State Government, admittedly, rejected the request of the CBI to prosecute him under Section 197(2) of Cr.PC vide letter dated 1.10.2007. The State Government has examined the matter thoroughly by looking into the merits and came to a considered opinion and rejected the permission to the CBI to prosecute him, being the competent authority under Section 197 of Cr.PC. The criminal proceedings were initiated by the CBI against him on the basis of the permission granted by the Central Government under Section 19(1) of the Prevention of Corruption Act on 2.12.2003. In fact, the CBI requested the State Government for permission for prosecution under Section 197(2) of Cr.P.C. vide letter dated 23.7.2002. If the State Government had not delayed its decision in rejecting permission for prosecution under Section 197(2) of Cr.P.C, the Central Government also would have rejected permission under Section 19(1) of P.C.Act, 1988. The Central Government had issued permission in a most mechanical manner without application of mind to the matter and without consulting the State Government. The sanction of prosecution, in the criminal case against a public servant working for State Government, is primarily required under Section 197 Cr.PC when it is a case of Land acquisition by the State Government. Permission under Section 19(1) of Prevention of Corruption Act is only an additional one when the officer is charged with the offences under Prevention of Corruption Act also. The State Government alone is competent to order promotions to the 'Above Supertime Scale' and the Central Government has nothing to say in this regard. It is further stated by the applicant that had the State Government acted without delay in rejecting permission to prosecute him, even the first time sealed cover adopted on 28.4.2007 would have been illegal and arbitrary. It is further stated that there was no progress at all from 7.4.1997 to 2.12.2003 i.e., from the date of FIR till the sanction was accorded by the Union Government under Section 19(1) of the Prevention of Corruption Act. It is stated that the trial has not yet commenced. The applicant further states that it is not proper for the State Government to deny promotion to the 'Above Supertime Scale' on the ground of pendency of criminal proceedings, that too, when in its considered opinion, there is no case at all to prosecute him, as is evident from the rejection proceedings dated 1.10.2007. The applicant states that pendency of criminal proceedings against him cannot be a bar for promotion to the said scale. According to Para 19 of the DoPT letter dated 28.3.2000, the concerned State Governments shall comprehensively review cases where sealed cover procedure is adopted on the expiry of three months from the date of convening of the first screening committee and as a result of such a review, the State Government comes to a conclusion that there is, prima facie, no case, the sealed cover would be opened and the officer concerned would be given his due promotion with reference to the position assigned to him by the DPC. This mandatory instruction has been deliberately ignored by the State Government by not reviewing his case.
12. The applicant has further stated that he had submitted one representation to the State Government on 27.11.2007 and another representation on 28.4.2007 was also submitted requesting for promotion to the 'Above Supertime Scale of IAS' but the State Government has not replied to any of the representations and that is why the applicant was forced to file this OA. The applicant has submitted that his promotion should not be ignored on the ground of pendency of criminal proceedings which are pending for about 12 years without any progress.
13. The learned counsel for the applicant argued vehemently that as per Rule 19 of the General Guidelines for promotion etc., and functioning of Screening Committees, circulated vide Department of Personnel & Training letter bearing No.20011/4/92-AIS(II), dated 28.3.2000, a three monthly review of sealed cover cases was prescribed and if on such thee monthly reviews, it is found that there is no case against the Government servant, the sealed cover is to be opened and the recommendations of the DPC have to be implemented. We, therefore, directed the learned counsel appearing for the State Government on 3.11.2008 to produce the relevant record and to show whether the State Government had conducted reviews as per Rule 19.
14. On 12.11.2008, the learned counsel for the State Government produced the records but it was found that the three monthly reviews had not been done. The learned counsel for the State Government could not take a clear stand on the three monthly reviews envisaged under Rule 19 of the above Guidelines. However, he submitted a Memo bearing No.1071/Special.A/A1/2006-13 dated 11.11.2008 from the Chief Secretary to Government, relevant portion of which is reproduced as under:-
Sub: COURT CASE Central Administration Tribunal, Hyderabad Bench O.A.No.286/2008 filed by Shri M.G.Gopal, IAS, Production of Current file in C.No.1071/Special.A/2006 as per the direction of Hon'ble Tribunal Regarding.
Ref: Order dated 3.11.2008 in O.A.No.286/2008 received from Hon'ble Central Administrative Tribunal, Hyderabad.
@@@ The attention of the Special Counsel for Government before the Central Administrative Tribunal, Hyderabad Bench is invited to the reference cited.
2. In regard to convening of three monthly reviews in case of sealed cover cases, State Government is reviewing the such cases in the subsequent meetings of the Screening Committee being held for considering the cases of officers for promotion to the grade to which the officer is to be promoted. In this instant case, the case of Sri MG Gopal has been deferred first time i.e., on 23.1.2007 and 3.2.2007 and when the Screening Committee again on 28.4.2007, recommended to place its recommendations in sealed cover since the prosecution case is pending against him. The Member of Service made a representation to Government on 27.11.2007 to consider his case for promotion to Above Supertime Scale of IAS and the State Government took a decision to convene the Screening Committee to consider his case. The Screening Committee that met on 4.3.2008 has decided to obtain the opinion of the Advocate General in the matter. Accordingly, the Advocate General was requested to furnish his views in the matter. He has opined that the covering letter to guidelines specifically says that in exceptional circumstances State Government can seek approval of the Central Government to deviate from the Guidelines. The delay is abnormal and coupled with the fact that the State Government has refused sanction to prosecute the individual, State Government may address the Central Government for approval to deviate from the guidelines explaining the exceptional circumstances. Further, the Advocate General also suggested to take steps to hasten up completion of criminal prosecution and depending upon the outcome of the same, the recommendations of the Screening Committee can be given effect to in accordance with the guidelines. Accordingly, explaining the circumstances of the case, the State Government requested the Government of India vide letter dated 11.6.2008 to permit the state Government to promote the officer to the Above Supertime Scale of IAS, in deviation of the Promotion guidelines in view of the exceptional circumstances of the case. The decision of the Government of India, Department of Personnel and Training is still awaited. The State Government vide its letter No.893/SCD/A3/2001-14, dated 7.7.2008 addressed the Dy. Inspector General of Police, CBI, Hyderabad Region, Hyderabad to take immediate further action to hasten up the case pending before the Special Judge for Central Bureau of Investigation, Visakhapatnam against Sri M.G.Gopal, IAS. The Screening Committee that met on 29.4.2008 considered the case of Sri M.G.Gopal, IAS along with 1984 Batch of IAS Officers for promotion to Above Supertime Scale of IAS and placed its recommendations in Sealed cover, since the Criminal prosecution case is still pending against the Member of Service.
15. During the course of hearing, we had also wanted the learned counsel representing Union of India to take a definite stand in the matter after seeking instructions from the Central Government, in response to which, the learned Senior Standing Counsel filed a copy of the letter dated 30.9.2008 addressed to him from the Ministry of Personnel, Public Grievances and Pensions, relevant portion of which is reproduced as under:-
I am directed to refer to your letter No. dated 31st July, 2008 on the above mentioned subject and to say that the main relief sought by the applicant is for opening of the sealed cover for promotion to the grade of Suer Time Scale of IAS. As the DPC which placed him in the sealed cover has been held in the State Government, the reliefs sought is therefore directed at respondent No.1 i.e., the State Government of Andhra Pradesh. Also, the applicant has not challenged the validity of any rule/guidelines relating to the promotion to different grades of Indian Administrative Service issued by the Central Government nor he has challenged any action of the Central Government (Department of Personnel and Training) in this regard. Therefore, the Central Government (Department of Personnel and Training) is essentially a proforma party in the matter. It may however be mentioned that as a matter of policy, there is no provision for opening a sealed cover during pendency of a disciplinary case/court case. This Department can also not offer any comments on the delay in finalization of the pending court case filed against him by the CBI.
16. The learned counsel for the applicant submitted that as against the plea of the State Government that no deviation from the rules could be permitted, he submitted that he was only insisting on the implementation of Rule 19 of the Guidelines referred to above. For the sake of clarity, it is necessary to reproduce Rule 19 of the Guidelines which is as under:-
19. THREE MONTHLY REVIEW OF SEALED COVER CASES:
It is necessary to ensure that the disciplinary case/criminal prosecution instituted against an officer is not unduly prolonged and all efforts to expeditiously finalize the proceedings are taken so that the need for keeping the cases of officers in sealed cover/covers is limited to the barest minimum. The concerned State Governments shall comprehensively review such cases on the expiry of three months from the date of convening of the first Screening Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also after every three months. The review shall, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and further measures required to be taken to expedite their completion. The material/evidence collected in the investigations would also be scrutinized to determine in cases involving suspension whether there is a prima-facie case for initiating disciplinary action or sanctioning prosecution against the officer. If as a result of such a review, the State Govt. comes to a conclusion that there is prima facie no case, the sealed cover would be opened and the officer concerned would be given his due promotion with reference to the position assigned to him by the DPC.
Same procedure is to be followed in consideration the cases of confirmation. He submitted that since the State Government had not carried out the three monthly reviews as per the rules, the sealed cover should be opened and the recommendations of the DPC must be implemented. He clarified that this is what was required by Rule 19 itself and he submitted that he was never asking for any deviation from the rules. He also read through extensively from the letter No.893/SC.D/A3/2001-13, dated 1.10.2007 through which the State Government had rejected the request of the Central Bureau of Investigation for according sanction of prosecution under Section 197 Cr.PC against the applicant. He submitted that there was no case for prosecuting the applicant and there was no substance in the prosecution sanctioned by the Central Government. He heavily relied upon the case of P.V.Mahadevan v. MD, T.N.Housing Board reported at 2005 SCC (L&S) 861 and on the case of State of A.P. v. N.Radhakishan reported at (1998) 4 SCC 154. He submitted that having regard to these cases, the sealed cover must be opened and the recommendations of the DPC must be implemented forthwith particularly because the criminal case had been pending in this case for over 11 years and justice was being denied to the applicant unnecessarily.
17. The counsel for the State Government merely relied upon the reply statement and the letter dated 11.11.2008 extract from which has been reproduced. He submitted that the OA may be dismissed. The learned counsel for the Central Government did not make any specific submissions except relying on the letter dated 30.9.2008 extract from which has been reproduced above.
18. We have carefully considered the arguments on both sides, the materials on record and the authorities cited. In the first place, it is really unfortunate to note that the State Government had not carried out the three monthly reviews as per Rule 19 of the Guidelines mentioned above. We, therefore, direct the State Government to carry out such three monthly reviews regularly as per Rule 19 of the Guidelines. First such review must take place within one month of the receipt of this order.
19. Having said that it is difficult for us to agree to the contention of the learned counsel for the applicant that since the State Government had not carried out the three monthly reviews as per Rule 19 of the Guidelines, it was necessary to direct the State Government to open the sealed cover and to implement the results of the DPC. The reason why we are unable to accept this contention is because the learned counsel for the applicant has based his arguments reading Rule 19 in isolation. The Guidelines have to be read as a whole and no portion should be read in isolation. It is necessary in this context to read Rule 11 first which is reproduced as under:-
11. PROCEDURE TO BE FOLLOWED IN RESPECT OF OFFICERS AGAINST WHOM DISCIPLINARY/COURT PROCEEDINGS ARE PENDING OR WHOSE CONDUCT IS UNDER INVESTIGATION.
11.1 At the time of consideration of the cases of officers for promotion, details of such officers in the zone of consideration falling under the following categories should be specifically brought to the notice of the concerned Screening Committees:-
(a) Officers under suspension: (b) Officers in respect of whom a charge sheet has been issued and disciplinary proceedings are pending; (c) Officers in respect of whom prosecution for criminal charge is pending.
11.2 The Screening committee shall assess the suitability of the officers coming within the purview of the circumstances mentioned above, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution which is pending. The assessment of the Committee including Unfit for Promotion and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed FINDINGS REGARDING THE SUITABILITY FOR PROMOTON TO THE SCALE OF................IN RESPECT OF SRI....................NOT TO BE OPENED TILL THE TERMINATION OF THE DISCIPLINARY CASE/CRIMINAL PROSECUTION AGAINST SRI................. The proceedings of the Committee need only contain the note THE FINDINGS ARE CONTAINED IN THE ATTACHED SEALED COVER. The same procedure will be adopted by the subsequent Screening Committees till the disciplinary case/criminal prosecution against the officer concerned is concluded.
20. The second relevant rule is Rule 18 which is also reproduced as under:-
18. SEALED COVER CASES ACTION AFTER COMPLETION OF DISCIPLINARY/CRIMINAL PROSECUTION:
18.1. If the proceedings of the committee for promotion contain findings in a sealed cover, on conclusion of the disciplinary case/criminal prosecution, the sealed cover or covers shall be opened. In case the officer is completely exonerated, the due date of his promotion will be determined with reference to the findings of the Screening Committee kept in sealed cover/covers and with reference to the date of promotion of the next junior on the basis of such findings. The officer shall be promoted even if it requires to revert the junior-most officiating person. Such promotion would be with reference to the date of promotion of his junior and in these cases, the officer will be paid arrears of salary and allowances.
18.2 If a penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next screening Committee in the normal course, having regard to the penalty imposed on him. In such cases, the question of arrears may be decided by taking into account all the facts and circumstances of the disciplinary/criminal proceedings. Where arrears of salary or a part thereof are denied, the reasons for doing so shall be recorded.
21. A combined reading of Rules 11, 18 and 19 would lead one to conclude that in cases where disciplinary proceedings or criminal prosecution is pending, the three monthly reviews are intended to expedite conclusion of such disciplinary proceedings or criminal prosecutions. It is not envisaged in Rule 19 that as a result of such a review, the State Government may come to the conclusion that there is no prima facie case against the Government servant and then the sealed cover can be opened. This cannot be so because when the disciplinary proceedings are already pending or prosecution is already launched, the State Government cannot hold in three monthly reviews that there is no prima facie case against the Government servant. In fact, the provision for opening the sealed cover on the findings of the review Committee that there is no prima facie case against the Government servant appears to be only in respect of the cases involving suspension because in such cases only the State Government can give a finding as a result of three months review that there was no prima facie case either for initiating disciplinary case or for sanctioning prosecution against the officer. In the present case, the applicant is not under suspension and hence in his case, the provision for opening the sealed cover envisaged in Rule 19 is not applicable at all. Rule 18 clearly stipulates that it is only on conclusion of disciplinary case/criminal prosecution that the sealed cover can be opened. Rule 11 even gives the words to be subscribed on the sealed cover to the effect that the cover is not to be opened till the termination of the disciplinary case/criminal proceeding.
22. In view of the above reasoning, it is clear that what is prayed for in the OA is certainly a deviation from the Guidelines mentioned above. Now, we have to consider whether the case calls for any deviation from the Guidelines. The cases cited by the learned counsel for the applicant relate to the delay in the departmental inquiry and these authorities cannot be applied to this case which a case of prosecution. In the OA, the applicant has strongly relied upon an order of the Chandigarh Bench of this Tribunal in O.A.No.617/PB/2000 dated 15.9.2004. It is important to note here that that was a case of an officer whose name was to be included in the select list for IPS. The concerned rules themselves provided that in certain circumstances, the name of an officer could be included on provisional basis. Besides, in this case, Union Government had filed a Writ before the Punjab & Haryana High Court for quashing the order of the Tribunal and the High Court had dismissed the Writ Petition. However, the judgment of the Hon'ble High Court became the subject matter of SLP before the Hon'ble Supreme Court which reversed the judgment of the Punjab & Haryana High Court. The case is reported in AIR 2006 SC 1484. This clearly shows that the said judgment is of no help to the applicant. Besides, it is important to note here that the Guidelines referred to above do not contain any provision for provisional promotion, as was the case with the empanelment of officers in the IPS.
23. Thus, it is very clear that it is not possible to allow opening of the sealed cover as per rules contained in the Guidelines. It is also important to note here that the applicant has nowhere challenged the said Guidelines. Therefore, the only question that remains to be seen is whether we should order opening of the sealed cover despite the Guidelines. In other words, is there any case for deviation from the Guidelines?
24. After considering the entire matter, we are of the view that any deviation from the Guidelines is not called for at this stage at our instance and we refrain from expressing any opinion on this matter at this stage. This is so because, the State Government has already obtained opinion of the Advocate General in the matter as stated in the letter dated 11.11.2008, extracts from which have been reproduced above. Acting on the advice of the Advocate General, the State Government has already requested the Government of India, vide its letter dated 11.6.2008, to permit it to promote the officer to the Above Supertime Scale of IAS in deviation of the promotion Guidelines in view of the exceptional circumstances of the case. The decision of the Government of India is still awaited. The state Government, vide its letter dated 7.7.2008, has also written to the CBI to take immediate further action to expedite the case pending before the Special Judge for CBI, Visakhapatnam. In view of these developments, we direct the 2nd respondent to take a decision on the letter of the State Government dated 11.6.2008 within a period of three months of the receipt of this order.
25. In short, the OA is disposed of by directing the State Government in the first place to carry out the three monthly reviews regularly as per Rule 19 of the Guidelines, first such review to be done within one month of the receipt of this order and by directing the 2nd respondent to take a decision on the letter of the State Government dated 11.6.2008 mentioned in the letter dated 11.11.2008 filed before us by the learned counsel for the State Government and extracts from which have been quoted above. There shall be no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER (ADMN.) MEMBER (JUDL.)