Central Administrative Tribunal - Delhi
Devashish Yadav vs Intelligence Bureau on 7 April, 2025
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Item No.18/ C-3 OA No.327/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 327/2023
This the 07th day of April, 2025
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
DEVASHISH YADAV, AGED ABOUT 36 YEARS,
ACIO-II/EXE, PIS NO. 141386,
PERMANENT R/O: A-35, ANAND VIHAR,
GOPALPURA BYE-PASS, MANSAROVAR,
JAIPUR, PRESENTLY RESIDING AT PLOT NO. 17,
FLAT NO. A-37, SIDDHARTH KUNJ APARTMENT,
SECTOR-7, DWARKA,
NEW DELHI - 110075
... Applicant
(By Advocate : Mr. Tarunveer Singh Toggar with Mr.
T.R.Mohanty and Mr. Harsh Sharma)
Versus
1.THE DIRECTOR, INTELLIGENCE BUREAU,
MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA
ADD: 35, S.P. MARG,
NEW DELHI - 110021
2.MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS,
DEPARTMENT OF PERSONNEL AND TRAINING,
GOVERNMENT OF INDIA,
ADD: J-674+VJW, NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI - 110001
3. THE SECTION OFFICER, (ESTABLISHMENT BRANCH)
INTELLIGENCE BUREAU, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
ADD: 35, S.P. MARG,
NEW DELHI - 110021.
...Respondents
(By Advocate: Mr. Vijendra Singh with Mr. Rajesh Pal)
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Item No.18/ C-3 OA No.327/2023
ORDER (ORAL)
By Hon'ble Ms. Pratima K Gupta, Member (J):-
At the outset, learned counsel for the applicant submits that he would not press the amended OA as the MA seeking amendment has not been filed by him. Therefore, he would withdraw the amended OA, which is on record. He would press the OA itself. The pleadings in the OA are complete.
2. While presenting the case of the applicant, learned counsel for applicant takes us to the history and background of the OA.
The applicant was appointed as ACIO-II on 23.07.2014 and, upon completion of three years of regular service, became eligible to be considered for promotion to the post of ACIO-I w.e.f. 22.07.2017. A Departmental Promotion Committee (DPC) for eligible candidates was convened on 24.02.2022, wherein the applicant, along with his batchmates, was considered for promotion. However, the recommendations of the DPC were kept in a sealed cover in accordance with order dated 15.03.2022, placed at page 103 of the Original Application (OA). The reason assigned for keeping the 3 Item No.18/ C-3 OA No.327/2023 recommendations in a sealed cover was the pendency of a criminal case.
Learned counsel for the applicant submits that an FIR bearing No. 79/2018, dated 14.07.2018, was filed by the wife of the applicant under Sections 498-A, 294, 506, and 34 of the Indian Penal Code at Gwalior. A case was also instituted under Sections 12 and 13 of the Protection of Women from Domestic Violence (DV) Act, 2005, at Gwalior. The wife of the applicant preferred a transfer petition before the Hon‟ble Apex Court, seeking transfer of the criminal case i.e. FIR 79/2018 to Jaipur. By order dated 03.05.2019, the Hon‟ble Supreme Court transferred the criminal proceedings to Jaipur. While transferring the petition, investigation was stayed by the Hon‟ble Apex Court. Pursuant to the directions of the Hon‟ble Supreme Court vide order dated 12.09.2023, the Competent Criminal Court at Jaipur proceeded with the criminal case, and a chargesheet was filed on 07.10.2023. Subsequently, charges were framed in the year 2024. Learned counsel submits that although FIR No. 79/2018 dated 14.07.2018 was transferred from Gwalior to Jaipur, the domestic violence case continued to proceed at Gwalior. With respect to the order dated 15.03.2022, the applicant submitted a 4 Item No.18/ C-3 OA No.327/2023 representation on 11.08.2022, followed by a subsequent reminder dated 31.08.2023. However, no response has been received from the respondents. Aggrieved by the same, the applicant has preferred the present OA seeking the following reliefs:-
"i. The Hon'ble Tribunal may be pleased to promote the applicant Devashish Yadav to the rank of Assistant Central Intelligence Officer/Grade-I(Exe);
ii. to direct the respondents to pay salary and other dues to the applicant as per his promotional post retrospectively i.e. since the date of promotion;
iii. To set-aside and quash the order/memorandum dated 15.03.2022;
iv. The cost of this OA may kindly be award in favour of the applicant and against the respondents;
v. That any other relief as this Hon'ble Tribunal may deem fit and proper may also be awarded in favour of the applicant;"
3. Learned counsel for applicant assails the decision of the Competent Authority dated 15.03.2022 on the following grounds:-
(i) That since the investigation was stayed, there was neither any chargesheet filed nor any charges pending against the applicant before the Competent Criminal Court at the relevant point of time. Therefore, there existed no legal impediment that could have prevented the applicant from being granted 5 Item No.18/ C-3 OA No.327/2023 promotion, and the respondents could not adopted the sealed cover procedure.
(ii) Learned counsel for the applicant draws strength from the DoPT Office Memorandum dated 14.09.1992, particularly Para 2(III), which lays down three specific conditions under which the sealed cover procedure is to be adopted. He submits that the OA unambiguously demonstrates that though a criminal proceeding was pending against the applicant, and in the absence of charges having been framed or cognizance taken by the competent criminal case, the adoption of the sealed cover procedure was not warranted.
(iii) He further relies on the subsequent DoPT Office Memorandum dated 30.08.2022, which reiterates and clarifies the scope of pendency of judicial proceedings. It specifically defines that a case is to be treated as pending for the purpose of the sealed cover procedure only after a criminal court takes cognizance of the offence on the basis of the FIR. In the present case, the investigation itself was stayed by the Hon‟ble Apex Court, and consequently, the Criminal Court could not have taken cognizance of the matter as on the date of the DPC. Therefore, the respondents have erroneously placed the recommendations in a sealed cover.6
Item No.18/ C-3 OA No.327/2023
4. With respect to the complaint case under the Domestic Violence Act, learned counsel places reliance on the decision of the Coordinate Bench of this Tribunal at the Allahabad Bench in O.A. No. 8/2017, decided on 23.12.2021, wherein the Coordinate Bench has relied upon the judgment of the Hon‟ble High Court of Delhi in W.P. (C) No. 691/2016, titled Himanshu Gupta vs. Union of India & Ors., Hon‟ble High Court of Delhi has held that criminal charges which do not arise out of any act of commission or omission in the discharge of official duties cannot form the basis for denial of promotion or invocation of the sealed cover procedure. He submits that during the pendency of the OA, the applicant extended the promotion to the post of ACIO-I on adhoc basis on 29.10.2024.
5. Learned counsel for the respondents vehemently opposes the present OA. He submits that, as on the date when the Departmental Promotion Committee (DPC) was held on 24.02.2022, two criminal proceedings were pending against the applicant:
(i) A complaint case dated 22.06.2018 at Gwalior, in which the Competent Criminal Court had already taken cognizance; and 7 Item No.18/ C-3 OA No.327/2023
(ii) FIR No. 79/2018.
He submits that although investigation in respect of FIR No. 79/2018 was stayed by the Hon‟ble Apex Court, the pendency of the DV Act arising from the same incident would nonetheless come in the way of the applicant being granted promotion.
6.1 Heard the counsels for the parties in detailed. 6.2 To summaries, the DPC for consideration to the post of ACIO-I was held on 24.02.2022. There are two cases pending against the applicant on the said date, one being the proceedings under the DV Act and second the FIR No. 79/18. In light of the interim protection extended by the Hon‟ble Apex Court vide order dated 03.05.2019, the investigation itself stood stayed and, therefore, chargesheet was filed on 07.10.2023 (after the decision of the Hon‟ble Apex Court vide order dated 12.09.2023), and, therefore on the date of DPC, being the crucial date, there was nothing against the FIR No. 79/18 that could have prevented the respondents from extending the promotion to the applicant. We have no hesitation in concluding that, with respect to FIR No. 79/18, the recommendations of the DPC could not have been placed 8 Item No.18/ C-3 OA No.327/2023 under a sealed cover and the same has been confirmed by the OM dated 30.08.2022 reproduced hereinabove r/w OM dated 14.09.1992 and OM dated 02.11.2012.
6.3 The complaint filed by the wife of the applicant under the provisions of DV Act is linked to a marital dispute. We are guided by the decision of the coordinate Bench of this Tribunal at Allahabad Bench in OA 8/2017 decided on 23.12.2021 wherein, one of us, Mrs. Pratima K. Gupta, Member (J) has been a Member. The relevant paragraphs would be paragraphs No. 3, 5 and 6, which are reproduced as under:-
"3. The applicant argues that the Departmental Promotion Committee (DPC) had duly recommended his name for promotion and subsequent to the recommendation an order of his promotion was issued but department did not implement that order and subsequently impugned order was issued. Applicant challenges this order on the initial ground that this order is very cryptic and does not mention the reason for cancellation of his order of promotion. Applicant submits that he had to resort to the Right to Information Act to find out the reasons for denial of promotion to him and he was shocked to learn that the orders of his promotion were cancelled on ground of a family dispute in which some criminal case has been registered against him. He informs that that case registered against him was on account of a Non Cognizable Report furnished by his wife under section 323 and 504 of the IPC. Subsequent to the investigation done by the police on the direction of the Court, Section 498A and 506 of IPC were added. The 9 Item No.18/ C-3 OA No.327/2023 applicant argues that none of these sections could be an impediment to his promotion as the criminal charges levelled against him did not arise out of any of his acts of either commission or omission in the discharge of his official duties. The applicant also draws attention an order passed by the Hon‟ble High Court of Delhi in WP (C) No. 6391 of 2016 titled Himanshu Gupta Vs. Engineers India Ltd. wherein in absolutely identical circumstances and facts, the Court had categorically held that the promotion cannot be denied to an employee merely because investigation under the aforesaid sections are going on against him, specially when the DPC has considered the applicant fit for promotion and duly recommended his candidature for promotion.
5. Having heard the arguments put-forth by the applicant and the learned counsel for the respondents and also having carefully perused all the relevant documents on record, we are of the view that some facts are not disputed at all. The case of applicant was considered by the Departmental Promotion Committee (DPC) in its meeting held on 31.03.2016 wherein the vigilance clearance of the applicant was on record. The DPC assessed the candidate to be „Fit‟ for promotion and as a consequence of this recommendation, the applicant was promoted. However, this order of promotion was cancelled when it was realized that the applicant was facing criminal prosecution for charges under section 323, 504, 498A and 506 of IPC. At the same time, it is to be borne in mind that these charges were neither related to nor were the result of any of the official responsibilities or conduct of the applicant. These charges were an outcome of a marital dispute he was facing. The DOPT Rules and instructions relied upon by the learned counsel for the respondents do not conclusively cover the instant case as reading the instructions in their entirety makes it obvious that the criminal prosecution which will be an impediment to the promotion should essentially be related to the official position, responsibility and conduct of an employee. This is not the case here. The judgment of the Hon‟ble High Court of Delhi in 10 Item No.18/ C-3 OA No.327/2023 WP (C) No. 6391 of 2016 relied upon by the applicant makes an unambiguous observation that denial of promotion to an employee on ground of criminal charges, which are not related to the service of the employee is misconceived and does not stand the scrutiny of law.
6. In view of the detailed position explained above, the O.A. is allowed and the impugned order dated
24.11.2016 bearing No. 381/4430-A/Per/G is quashed. Since the Departmental Promotion Committee had found the applicant „Fit‟ for promotion, the same shall be awarded to him w.e.f. 01.04.2016 when his first promotion order was issued, which later got to be cancelled. Further direction is given to the respondents to comply with these directions within a period of four weeks from the date of this order. No order as to costs." 6.4 Guided by the above decision, since the marital discord has not affected the work and conduct of the applicant, the dispute itself is not a valid ground for denying promotion, and the applicant cannot be deprived of the same. 6.5 Additionally, We are informed that during the pendency of this O.A., the applicant has been extended adhoc promotion to the post of ACIO-I w.e.f. 29.10.2024.
6.5 For the reason stated hereinabove, the OA is allowed. The impugned order dated 15.03.2022 is quashed and set aside. The respondents shall open the sealed cover of the applicant and if the recommendations finds favour to the applicant, he should be extended promotion from the date his 11 Item No.18/ C-3 OA No.327/2023 immediate juniors/batchmates were extended in pursuance of the recommendations of the DPC dated 24.02.2022. The Applicant will be entitled to all consequential benefits that may include seniority and pay fixation albeit on notional basis and actual basis from the date he was promoted on adhoc basis. He would be entitled to arrears if any, that may accrue in his favor, in view of the pay fixation directed herein above, from the date he promoted on adhoc as ACIO-I. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K Gupta)
Member (A) Member (J)
/daya/