Central Administrative Tribunal - Delhi
Mahavir Singh vs Dda & Ors on 3 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1461/2012 ORDER RESERVED ON: 03.10.2012 ORDER PRONOUNCED ON: 03.12.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Mahavir Singh, R/o C-147, Jawahar Park, Devli Road, New Delhi-110062. Applicant. (By Advocate Shri M.K. Bhardwaj) Versus DDA & Ors. 1. Vice Chairman, DDA, Vikas Sadan, New Delhi. 2. The Finance Member, DDA, Vikas Sadan, New Delhi. 3. The Director (Personnel), DDA, Vikas Sadan, New Delhi. Respondents. (By Advocate Shri Manish Garg) O R D E R
Shri G. George Paracken:
The legal premises on which the applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 is that mere contemplation of departmental inquiry proceedings is not a good and valid ground to deny promotion to a Government servant from the due date if he is otherwise found eligible and suitable. In this regard, he has relied upon the judgments of the Apex court in Union of India Vs. K.V. Janakiraman (JT 1991 (3) SC 527), Union of India Vs. Sangram Kesri Nayak (2007 (6) SCC 704), WP (C) No. 7810/2008 Union of India Vs. Om Prakash, order in OA No. 1919/2008-B.S. Bola Vs. Union of India, common order in OAs 941 and 1131/2011-Chacko Eapen Vs. Union of India & Ors. and order in OA 1096/2011-Manoj Kumar Vs. Union of India & Ors.
2. In K.V. Janakiramans case (supra), one of the questions considered and answered was: What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? The answer to the said question as given by the Full Bench of this Tribunal has been upheld by the Apex Court and reiterated that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The relevant part of the said judgment is as under:
16. ..The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
3. In Union of India & Ors. Vs. Sangram Keshari Nayak (2007 (6) SCC 704), it has been held that the right to be considered for promotion is a fundamental right and it involves effective, purposeful and meaningful consideration and the promotion can be denied only on the basis of valid rules. The relevant part of the said judgment reads as under:
11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.
4. In the judgment of the High Court of Delhi in Writ Petition (Civil) No. 7810/2008 - Union of India Vs. Om Prakash, decided on 27.11.2008, the petitioner was aggrieved by the order dated 03.06.2006 passed by this Tribunal in OA 1185/2007. He was working as a Public Relation Officer in Grade-III with the Ministry of External Affairs and a case was registered against him by Central Bureau of Investigation (CBI) sometime in August, 2004. The DPC which met on 09.02.2007 considered and recommended his case also for promotion. Thereafter, a select list was drawn up on 22.02.2007 on the basis of the recommendations of the DPC but the competent authority did not give effect to the recommendations of the DPC. In the meanwhile, on 09.03.2007, the Central Government gave sanction to prosecute him. As a result, his promotion due on 15.06.2007 was withheld but his juniors have been promoted from that date. Aggrieved by the aforesaid decision of the Department, he challenged the same before this Tribunal. Accepting his contentions, this Tribunal directed the Department to grant him promotion in accordance with the recommendations of the DPC. However, the Department challenged the aforesaid position before the High Court in the said Writ Petition. Relying upon the judgments of the Apex Court in Union of India Vs. Kewal Kumar (AIR 1993 SC 1585) and Union of India & Ors. Vs. K.V. Jankiraman & Ors. (1991 (4) SCC 109), he argued that the respondent did not commit any thing wrong to deny him physical promotion. Agreeing with the aforesaid argument and upholding the view taken by this Tribunal, the High Court held that there was no rule or Office Memorandum which entitles the petitioner to withhold the physical promotion of the respondent only because sanction for his prosecution was granted. The relevant part of the said judgment reads as under:
7. Learned counsel for the Petitioner has drawn our attention to Union of India v. Kewal Kumar AIR 1993 SC 1585 to contend that the Supreme Court in Union of India and Others v. K.V.Jankiraman and Others (1991) 4 SCC 109 approved the adoption of a deemed sealed cover procedure in the case of persons whose prosecution has been sanctioned. It is submitted, on this basis, that the Petitioner has not committed any error in denying physical promotion to the Respondent.
8. Learned counsel for the Respondent has drawn our attention, and in our opinion quite rightly, to the fact that Jankiraman dealt with the Office Memorandum dated 12th January, 1988. In terms of the 1988 Office Memorandum, it was made clear that a Government servant in respect of whom a prosecution for a criminal charge is pending or sanction has been issued or a decision has been taken to accord sanction for prosecution will be subjected to the deemed sealed cover procedure. A few years later, the Central Government reviewed the entire position keeping in mind the Office Memorandum dated 12th January, 1988 as well as the decision of the Supreme Court in Jankiraman and issued a fresh Office Memorandum on 14th September, 1992. By the said Office Memorandum, the earlier Office Memorandum dated 12th January, 1988 was specifically superseded.
9. The 1992 Office Memorandum also deals with cases of Government servants to whom the sealed cover procedure is applicable. In paragraph 2 of the Office Memorandum, it is stated as follows :
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 a charge-sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending.
10. No doubt the above paragraph deals with cases that are brought to the notice of the DPC. However, it is necessary to read this with paragraph 7 of the 1992 Office Memorandum which is equally relevant. Paragraph 7 deals with the sealed cover procedure applicable to officers coming under a cloud after the holding of a DPC but before actual promotion. Paragraph 7 of the Office Memorandum dated 14th September, 1992 reads as follows:
Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion. 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 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 or the charges against him and the provisions contained in this OM will be applicable in his case also.
11. Even a casual perusal of the above two paragraphs of the Office Memorandum dated 14th September, 1992 shows that there is no provision made therein for adopting the sealed cover procedure or a deemed sealed cover procedure in cases in which only sanction is accorded for prosecution. This is in stark contrast to such a specific mention and provision made in the Office Memorandum dated 12th January, 1988.
12. It appears to us that the Central Government, while framing the Office Memorandum dated 14th September, 1992 specifically and consciously deleted the requirement of a sealed cover procedure or a deemed cover procedure in respect of Government servants in respect of whom sanction for prosecution is granted. It is not clear why the Central Government has taken such a view, but it is not for us to comment on this or on the correctness of the view consciously taken by the Central Government.
13. Under these circumstances, it appears to us quite clear that since there is no rule or Office Memorandum which entitles the Petitioner to withhold the physical promotion of the Respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the Respondent.
14. We are in agreement with the view expressed by the Tribunal that in the absence of any rule permitting the withholding of the Respondents promotion, a direction should be issued to the Petitioner to give effect to the recommendations of the DPC and to promote the Respondent from the date his juniors were promoted with all consequential benefits as may be admissible under the Rules.
15. We find no merit in the writ petition. Accordingly, it is dismissed.
5. A co-ordinate Bench of this Tribunal in OA 1919/2008 B.S. Bola, IPS Vs. Union of India wherein it has been decided as under:
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It remained admitted position during the course of arguments that by the time the DPC met, i.e., 22.12.2005, or even by the time the order promoting the batchmates of the applicant, some of whom were junior to the applicant as well, came to be passed, the concerned CBI court had not framed the charge against the applicant, nor even the disciplinary proceedings were initiated against him. At the most, sanction to prosecute the applicant had since already been accorded. We are of the firm view that the matter on the facts as mentioned above, is covered in favour of the applicant by a recent decision of this Tribunal in OA No.1185/2007 decided on 3.6.2008 in the matter of Om Prakash v Union of India. Not only the facts and law involved are similar, but incidentally, even the learned counsel representing the parties are the same. This judgment of the Tribunal has been affirmed in a writ filed by the respondents in the said case before the Honble High Court of Delhi [WP(C) No.7810/2008 decided on 27.11.2008 - Union of India v Om Prakash]. We may only mention that whereas, the case of the applicant for adopting sealed cover procedure may be justified on the dint of DOP&T OM dated 12.1.1988, the same would not be so covered by the later OM dated 14.9.1992, vide which not only the OM dated 12.1.1988, but all other OMs covering the issue were superseded. This precise issue in reference to the difference in the two OMs referred to above has been threadbare dealt with by us in Om Prakash (supra). We may extract the relevant observations made in that behalf:
8. It could not be disputed during the course of arguments that the promotion/confirmation of employees against whom disciplinary/court proceedings are pending or whose conduct is under investigation, is now governed by instructions contained in OM dated 14.9.1992. That being so, in our considered view, sealed cover procedure can be adopted in case where a government servant may be under suspension, or in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending, or in respect of whom prosecution for a criminal charge is pending. Whereas clause (i) of para 2 of instructions of 1988 and 1992 is the same, there is a marked difference between clause (ii) of para 2 of instructions of 1988 and that of 1992. Whereas, as per clause (ii) of para 2 of the 1988 instructions, sealed cover procedure could be adopted in respect of government servant against whom disciplinary proceedings were pending or a decision had been taken to initiate disciplinary proceedings, such procedure can be adopted as per clause (ii) of para 2 of the 1992 instructions only in respect of government servant against whom charge-sheet has been issued and the disciplinary proceedings are pending. Reading of clause (ii) of para 2 of the 1992 instructions would make it absolutely clear that disciplinary proceedings would be considered to be pending only if the charge-sheet has been issued, as the words whom a charge-sheet has been issued precede the words and the disciplinary proceedings are pending. This meaning of clause (ii) of para 2 can be gathered from the fact that the word and has been used between the words Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending. If perhaps, instead of the word and, or was mentioned, it could mean that in either case, i.e., when disciplinary proceedings are pending, or a charge sheet was framed, the sealed cover procedure could be adopted. We need not further delve into clause (ii) of para 2 of instructions of 1988 or 1992 as it is not the case of the respondents that sealed cover procedure has been adopted in the case of the applicant because of circumstances obtainable in clause (ii) of para 2 of the instructions of 1988 or 1992. Once again, there is significant change in clause (iii) of para 2 of the 1988 instructions and the one contained in 1992 instructions. Whereas, as per clause (iii) of para 2 of the 1988 instructions sealed cover procedure could be adopted with regard to a government servant in respect of whom prosecution for a criminal charge was pending or sanction for prosecution had been issued or a decision had been taken to accord sanction for prosecution, as per clause (iii) of para 2 in the 1992 instructions such procedure can be adopted only if the prosecution for a criminal charge is pending against a government servant. Pendency of sanction for prosecution or even a decision that might have been taken to accord sanction for prosecution, have been consciously deleted from clause (ii) of para 2 of the later instructions. Insofar as clause (iv) of para 2 in the 1988 instructions is concerned, the same has been deleted from the 1992 instructions. Para 7 of the instructions, be it the instructions of 1988 or of 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. In the present case, it is apparent that none of the circumstances enumerated in para 2 of the instructions of 1992 were in existence. The same did not come into existence by sanctioning prosecution of the applicant. The contention of Shri Bhardwaj, learned counsel representing the respondents, to incorporate the circumstance of sanction for prosecution enumerated in the instructions of 1988 justifying non-promotion of the applicant, in our view, has to be repelled.
In all fairness to Shri Bhardwaj, learned counsel for the respondents, we may mention that he also urged that para 7 of OM dated 14.9.1992 would be applicable in this case inasmuch as, even if the sealed cover procedure was not to be adopted in respect of the applicant and he was to be recommended for promotion, but before he could be actually promoted, if the circumstances mentioned in OM dated 14.9.1992 became available, he would not be promoted unless he is completely exonerated of the charges against him. Para 7 of the said OM reads as follows:
Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
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 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 or the charges against him and the provisions contained in this OM will be applicable in his case also.
The said argument needs to be straightway rejected. Para 7 of OM dated 14.9.1992 is not applicable in the facts of the present case. In the present case, there was no order passed giving the applicant selection grade. Insofar as, colleagues of the applicant are concerned, they were given the selection grade on 3.1.2006 and 10.7.2006, by which time as well, circumstances as mentioned in OM dated 14.9.1992 permitting adoption of sealed cover procedure had not become available. As to in what circumstances para 7 of the said OM would be applicable, is also mentioned in our judgment in Om Prakash (supra), and thus we need not reiterate the view taken therein. During the course of arguments, Shri Behera had relied upon number of judicial precedents, but there would be no need to make a mention of the same, which would be unnecessarily burdening the judgment.
6. Before we may part with this order, we may mention that in Om Prakash (supra), the applicant therein was facing criminal charge, which also included allegations constituting offences under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act. We may also mention that the law makes no distinction between ordinary delinquency or misconduct like corruption. The Government may think to deal separately with the misconduct which may be serious enough like bribery and corruption, but as long as there is no distinction made on the gravity of the offence for an employee may be charge-sheeted, the courts shall have no choice but for to take the view as has been taken by us.
7. Resultantly, present Application is partly allowed. A direction is issued to the respondents to open the sealed cover of the applicant with regard to grant of selection grade, and if the recommendation may be in his favour, to grant him the said grade from the date his colleagues, some of whom were junior to him, were given the same. There shall, however, be no order as to costs.
6. The common order of the Ernakulam Bench of this Tribunal in Chacko Eapen Vs. Union of India & Ors. & connected case OA 941/2011 and OA 1131/2011 held as under:
11. If we trace the history of the sealed cover procedure, the same dates back to 1982 onwards, as could be seen in the case of Union of India vs K.V.Jankiraman (1991) 4 SCC 109 wherein the Court has observed as under:-
"10. The Government of India (Deptt. of Personnel & Training) issued an Office Memorandum No. 22011/1/79. Estt.(A) dated January 30, 1982 on the subject of promotion of officers in whose cases "the sealed cover procedure" had been followed but against whom disciplinary/court proceedings were pending for a long time. The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (hereinafter referred to as the `DPC') at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/court proceedings. However, no arrears of salary are paid in respect of the period prior to the date of actual promotion."
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21. Now in so far as the relief claimed in this case, the applicants have claimed that the sealed cover shall be got opened and acted upon. In fact, the respondents ought to have considered the case of the applicants for promotion without resorting to the sealed cover procedure. In fact, some of the juniors have already been promoted as the sealed cover procedure had been followed in the case of the applicants. Thus, on the date when DPC was held and also when the juniors were promoted, the contingency the happening of which sealed cover procedure could be adopted, had not occurred in the case of the applicants. Thus, the clock has to be set back and action taken. For the Apex Court has held in the case of Union of India vs Sangram Keshari Nayak (2007) 6 SCC 704 that for adopting the sealed cover procedure, conditions for adopting the sealed cover procedure must have existed at the material point of time. Thus, even if the charges are framed in the near future, the same shall not affect the process of opening the sealed cover and acting on the same. In respect of this part of the order, though the earlier order is slightly different, the same may not be taken to mean that the other order is overruled as this part of the order is only with reference to awarding of relief, which is certainly the discretion (judicious) of the Bench.
22. The OAs are thus, allowed. Respondents are directed to open the sealed cover forthwith and act on the basis of the recommendations contained therein. This order shall be complied with, within a period of four weeks from the date of receipt of copy of this order.
7. Another order of the same Bench in Manoj Kumar Vs. Union of India & Ors. (OA 1096 of 2011) reads as under:
The applicant and several others were accused in a Criminal case in C.C.No.7/07 and 1/07. When the respondents constituted the DPC for considering the promotion of various persons which included the applicant also took sealed cover procedure on the ground that prosecution was pending. According to the applicant the sealed cover procedure opted is not warranted as no charges are framed by the Court and relied on the judgment of Hon'ble Supreme Court in the case of Union of India vs. K.V.Janakiraman, AIR 1991 SC 2010. In respect of co-accused this Tribunal had an occasion to consider whether sealed cover procedure can be adopted when charges are not framed by the Court. After elaborate discussion on the issue and after reference to the various decision of the Apex Court, it was held that sealed cover procedure could be adopted when charge sheet is framed by the Court and not earlier. This Tribunal made reference to the decision of S.K. Sinha, Chief Enforcement Officer vs Videocon International Ltd , (2008) 2 SCC 492. In para 17 of the Tribunal's order it was held that during the course of investigation, the alleged offender is not termed as 'accused'. It is only when the charges are framed that the offender is termed, "accused." The Apex Court has in the case of Esher Singh vs State of A.P. (2004) 11 SCC 585 held that "The person becomes an accused for the purpose of trial after the charges are framed." Accordingly, this Tribunal allowed the OA and respondents are directed to open the sealed cover forthwith and act on the basis of the recommendations contained therein. Similar view was taken in OA 557/11 and the correctness of the said decision is canvassed before the Hon'ble High Court. As of now, we are bound by the decision of the Co-ordinate Bench of this Tribunal and accordingly we hold that the sealed cover procedure cannot be adopted when admittedly no charges are framed by the Court. In the circumstances, we direct that sealed cover be opened and act accordingly.
2. OA is allowed as above. No costs.
8. The factual matrix of the present case is that the applicant was served with the Annexure A-9 Memorandum dated 20.12.2010 stating that while working as Assistant Accounts Officer (`AAO for short), he dealt with the work of C/o Common Wealth Games Village for Common Wealth Games, Delhi. In the said Memorandum, it was further stated that the CTE had inspected the above cited work on 29.05.2009, 30.05.2009 and 02.06.2009 and he submitted his report vide their O.M. No. 05-09-H-02-SH-23 dated 27.07.2009, inter alia, alleging that he had committed the following lapses during his tenure in CGD-2:
i) He had issued/sold the tender to non pre-qualified/ineligible and inexperience agency i.e. M/s Sportina Payee Infrastructure Pvt. Ltd. Without verifying that it was not the exact pre-qualified agency viz. M/s Sprina Payee Construction (India) Pvt. Ltd. Subsequently the work was awarded to the same ineligible and inexperience agency after becoming the lowest tenderer.
He was, however, given an opportunity to explain his position with regard to the aforesaid allegations within 15 days time. He submitted the Annexure A-10 detailed explanation dated 11.02.2011 denying the aforesaid allegations and requested the respondents to consider his case sympathetically and to exonerate all employees/officials and officers involved in the above work including him from the aforesaid allegations. However, the respondents were not satisfied with the aforesaid explanation and served him with the Annexure A-8 Memorandum dated 29.02.2012 proposing to hold an inquiry against him under Regulation 25 of the DDA (Conduct, Disciplinary and Appeal) Regulations, 1999 along with the statement of imputations of misconduct or misbehaviour in support of Articles of charge framed against him and the lists of documents and witnesses by which those articles were proposed to be substantiated.
9. Meanwhile, the respondents prepared a panel of AAOs including the applicant for promotion to the post of Accounts Officer (`AO for short) for the year 2010-11 and have made promotions to the post of AO from it on 29.12.2010. However, the applicant was not promoted. But 01 post of AO under the general category was not filled up. Thereafter, the applicant made the Annexure A-2 representation dated 07.01.2011 stating that as against the total 37 posts of AOs, only 31 (28 General and 03 SCs) promotions have been made, keeping 05 posts (04 for SCs & 01 for ST) unfilled for the reserved categories and 01 more post of AO is still available as on 29.12.2010. He has further requested that since he was the next person available in the aforesaid panel, he should be promoted as AO with retrospective effect from 29.12.2010 i.e. from the date of promotion of his junior AAO of SC category. The respondents examined the aforesaid representation of the applicant vide their note dated 13.01.2011, copy of which has been annexed as Annexure A-2 of this OA. According to the said note, the total sanctioned strength of AO was 37, out of which 08 posts were reserved for SC/ST category. The total men in position were 31 including 03 SCs/STs. Therefore, the clear vacancies as on 30.12.2010 were 01 for General Category and 05 for SC/ST candidates. It has also been stated in the said note that one of the AOs Smt. Manmohan Kaur, AO passed away on 07.01.2010 and as such one more vacancy of AO occurred and it was also available for promotion for the year 2010-11. In view of the above position, the applicant again made the Annexure A-5 representation dated 18.05.2011 to the respondents requesting them to hold the review DPC for the aforesaid one unfilled post of AO and a second DPC for the one unforeseen vacancy of AO occurred due to the death of Smt. Manmohan Kaur and to promote him as AO and allowing seniority to him before Shri I.P. Singh, the junior most in the SC category. The contention of the applicant was that there were no valid reasons to deny him promotion as only in the following three situations, the promotions can be withheld:
(i) Govt. servants under suspension;
(ii) Govt. servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending, and
(iii) Govt. servants in respect of whom prosecution for a criminal charge is pending.
10. The respondents have filed their reply. According to them, the facts in this case are that the DPC in its meeting held on 16.11.2011 considered the case of the applicant along with other AAOs for promotion to the post of AO. The said DPC assessed him FIT subject to fresh vigilance clearance report. However, vigilance clearance was not given in his case. Thereafter, his case, along with those of others, was placed before the appointing authority viz. Finance Member/DDA for acceptance of recommendation of DPC and appointment to the post of AO. The appointing authority accepted the recommendation of DPC and accorded approval for appointments to the post of AO except for the applicant. Accordingly, his junior, namely, Shri B.D. Kukreti, AAO was promoted to the post of AO vide E.O. No. 1688 dated 07.12.2011. Pursuant to note dated 08.12.2011 received from Chief Accounts Officer/DDA and with the administrative approval of Commissioner (Personnel), a review DPC was held on 27.12.2011 to review the items having already considered by the DPC held on 16.11.2011 including promotion to the post of AO. The said DPC also assessed him FIT subject to fresh vigilance clearance report. The case of the applicant was again placed before the appointing authority i.e. FM/DDA along with other empanelled officers for acceptance of recommendations of the review DPC and to accord his approval for promotion to the post of AO owing to reasons that no charge sheet had been issued to him and his immediate junior Shri B.D. Kukreti, AAO had already been promoted to the post of AO vide E.O. No. 1688 dated 07.12.2011. But, the appointing authority i.e. FM/DDA again did not accord his approval for promotion to the post of AO in respect of the petitioner. Accordingly, his other juniors, namely, Shri B.P. Banduni and Shri Ashok Kumar, AAOs were also promoted to the post of AO vide E.O. No. 1873 dated 29.12.2011.
11. The matter was again placed before the appointing authority i.e. FM/DDA for considering the request of the applicant. The FM/DDA vide note dated 23.04.2012 did not accept the proposal of promotion of the applicant to the post of AO for the reason that in his case the preliminary investigation has already been completed based on which the disciplinary authority had ordered for issue of major penalty charge sheet. Thus the stage of issuing the charge sheet had already reached when DPC meeting was conducted.
12. They have also relied upon the judgments in the following cases:
(1) Union of India & Ors. Vs. K.V. Janakiraman & Ors. (1991 (4) SCC 109):
(2) Union of India Vs. Kewal Kumar (1993 (3) SCC 204);
(3) Delhi Development Authority Vs. H.C. Khurana (1993 (3) SCC 196);
(4) Union of India & Anr. Vs. R.S. Sharma (2000 (4) SCC 394);
(5) DDA Vs. Y.L. Banka & Ors. (LPA No.95/96).
(6) R.R. Sahay Vs. Union of India & Ors. (WP (C) No. 6536/2010);
13. In K.V. Janakiramans case (supra), it was observed as under:
An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests.
14. In Kewal Kumars case (supra), the Apex Court has held as under:
3. It is obvious that when the competent authority takes the decision to initiate a disciplinary proceeding or steps are taken for launching a criminal prosecution against the government servant, he cannot be given the promotion, unless exonerated, even if the government servant is recommended for promotion by the D.P.C., being found suitable otherwise. In a case like the present, where the First Information Report was registered by the Central Bureau of Investigation, and on that basis the decision had been taken by the competent authority to initiate disciplinary proceedings for imposition of major penalty on the respondent prior to the meeting of the D.P. C., the applicability of the sealed cover procedure cannot be doubted. The formulation of the charges required for implementing the decision of the competent authority to initiate the disciplinary proceedings, is satisfied in such a case by the recording of the First Information Report by the Central Bureau of Investigation which records the allegations against the respondent, and provides the basis for disciplinary proceedings. The requisite formulation of the charges, in such a case, is no longer nebulous, being crystallised in the F.I.R. itself and, therefore, even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the D.P.C., this fact alone cannot benefit the respondent.
4. The question to examine in each case, is : Whether, the decision to initiate the disciplinary proceedings had been taken or steps for criminal prosecution initiated before the date on which the D.P.C. made the selection? The decision would depend on the facts of the case, keeping in view the object sought to be achieved by adopting the sealed cover procedure. It would be incongruous to hold that, in a case like the present, where the C.B.I. had recorded the F.I.R.; sent the same to the superior authorities of the respondent for taking necessary action; and the competent authority had taken the decision, on the basis of the F.I.R., to initiate disciplinary proceedings against the respondent for imposition of major penalty, there can be any doubt that the sealed cover procedure is attracted to avoid promoting the respondent, unless exonerated of those charges. These facts, which led to the adoption of the sealed cover procedure, are undoubtedly very material to adjudge the suitability of a person, for promotion to a higher post. A decision to follow the sealed cover procedure in these circumstances cannot, therefore, be faulted.
15. In H.C. Khuranas case (supra), the Apex Court has held as under:
11. The decision in Jankiraman is based inter alia, on O. M. dated 12-1-1988. The facts of the cases dealt with in the decision in Jankiraman do not indicate that the Court took the view, that even though the charge-sheet against the Government servant was framed and direction given to despatch the same to the Government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the D.P.C., that was not sufficient to attract the sealed cover procedures merely because service of the charge-sheet was effected subsequent to the meeting of the D.P.C. Moreover, in Jankiraman (1991 (4) SCC 109: AIR 1991 SC 2010) itself, it was stated thus:
"14. To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh, (1991) 4 SCC 129, decided on September 26, 1986, the Government of India in the Deptt. of Personnel and Training issued another Office Memorandum No. 22011/2/ 86-Estt. (A) dated January 12, 1988 in supersession of all the earlier instructions on the subject including the Office Memorandum dated January 30, 1982......... A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Government servant is recommended for promotion by the, DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken.
15. These differences in the two Memoranda have no bearing on the questions to be answered. " (Emphasis supplied)
12. Thereafter, in Jankiraman (1991(4) SCC 109 : AIR 1991 SC 2010), the conclusions of the Full Bench of the Tribunal, under consideration, were quoted, and then while restating that the conclusions of the Tribunal could be reconciled, it was further stated, thus:
"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."(Emphasis supplied)
13. It will be seen that in Jankiraman also, emphasis is on the stage when 'a decision has been taken to initiate the disciplinary proceedings' and it was further said that 'to deny the said benefit (of promotion), they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee'. The word 'issued' used in this context in Jankiraman, it is urged by learned Counsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The context in which the word 'issued' has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the charge-sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the Government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the contrary view cannot be taken.
14. 'Issue' of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman (AIR 1991 SC 20 10) which have been accepted thereafter In para 17 in the manner indicated above, do use the word 'served' in conclusion No.(4), but the fact of 'issue' of the charge-sheet to the employee is emphasised in para 17 of the decision. Conclusion No. (4) of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner.
15. The meaning of the word 'issued', on which considerable stress was laid by learned Counsel for the respondent, has to be gathered from the context in which it is used. Meanings, of the word 'issue' given in the Shorter Oxford English Dictionary include: 'to give exit to; to send forth, or allow to pass out; to let out; ....to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation'. The issue of a charge-sheet, therefore, means its despatch to the Government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the Government servant, the further fact of its actual service on the Government servant pot being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'charge-sheet has already been issued to the employee', in para 17 of the decision in Jankiraman.
16. In view of the above, we are unable to accept the respondent's contention, which found favour with the High Court, that the decision in Jankiraman (AIR 1991 SC 2010), on the facts in the present case, supports the view that the decision to initiate the disciplinary proceedings had not been taken or the charge-sheet had not been issued to the respondent prior to 28-11-1990, when the D.P.C. adopted the sealed cover procedure, merely because service of the charge-sheet framed and issued earlier could be effected on the respondent after 28-11-1990, on account of his absence.
17. Consequently, the appeal is allowed and the judgment of the High Court is set aside, with the result that the writ petition of the respondent stands dismissed. No costs.
16. In R.S. Sharmas case (supra), the respondent was a Divisional Engineer in the Telecom Department. An FIR with serious allegations of financial misdemeanours was registered against him and CBI took up investigation. On 10.3.1988 he was suspended but within a few months the suspension order was revoked. However, CBI continued the investigation. In the meanwhile DPC considered the cases of other persons in the Department for promotion, but deferred the case of the respondent on account of the pendency of the investigation. Pursuant to an order of CAT, DPC considered the case of the respondent on 3-4-1991 and adopted a decision but put its recommendations in sealed cover in accordance with para 2 (iv) of Government of India, Department of Personnel and Training Office Memo No.22011/2/86-Estt.(A) dated 12-1-1988. But subsequently, OM No.22011/1/91-Estt.(A) dated 31-7-1991 deleted the said para 2 (iv). However, it was clarified that cases already contained in sealed cover exclusively on account of para 2 (iv) would be opened while cases falling under any other clause of para 2 would continue to be in the sealed cover. CBI submitted its investigation report on 7-5-1991 and sought for sanction for prosecuting the respondent. The Minister concerned gave his approval on 9-7-1991 and after obtaining the advice of the Central Vigilance Commission, gave further approval on 10-9-1991 for adopting follow-up actions on the report. However, formal sanction for prosecution was granted by the President on 30-9-1991. At the instance of the respondent, CAT directed the Department to open the seal cover and implement DPCs recommendations. Before the Supreme Court though there was some controversy between the parties as to whether the approval was given by the Minister prior to, or after the deletion of para 2 (iv), viz., on 9-7-1991 or 10-9-1991, the Department contended that in any case para 7 of the Sealed Cover Procedure would still apply to the respondent. On the other hand the respondent contended that the Department, having deliberately denied promotion to the respondent immediately after the deletion of para 2 iv) on 31-7-1991, should not be allowed to invoke para 7. Allowing the Governments appeal, the Supreme Court held :
13. Two factual aspects are admitted. One is that respondent was not actually promoted even now. The other is that formal sanction has been accorded to prosecute him in the meanwhile. If that be so, paragraph 7 of the Sealed Cover Procedure would entirely apply and the recommendations made by the DPC in respect of the respondent have to remain in the sealed cover "until he is completely exonerated of the charges against him."
14. Shri Anil Kumar Sharma, learned counsel, adopted the contention that the situation would not have arisen as envisaged in paragraph 7 of the Sealed Cover Procedure if the appellants had complied with the conditions stipulated in the Office Memorandum dated 31-7-1991 either on that day itself or at least soon thereafter by promoting the respondent. Learned counsel contended that the Department had wilfully and deliberately avoided to comply with the said Office Memo dated 31-7-1979, and hence appellants should not be permitted to take advantage of their own wrong.
15. We are not impressed by the said arguments for two reasons. One is that, what the Department did not do is not the yardstick indicated in paragraph 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the Government servant who is not "actually promoted" by that time. Second is that, the stand taken up by the Department is that in spite of deletion of clause (iv) of the second paragraph, the recommendations of the DPC must remain in the sealed cover on account of the conditions specified in clause (iii) of the said paragraph by virtue of the operation of paragraph 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991.
16. Learned counsel for the respondent made an endeavour to contend that in the light of the decision of this Court in Union of India v. K. V. Janakiraman, (1991) 4 SCC 109 the Sealed Cover Procedure can be resorted to only after Charge Memo is received or a charge-sheet is filed and that unless such an event had happened at the relevant time the Government employee cannot be denied of his promotion, if he is otherwise entitled to it. Learned counsel also submitted that Janakiraman was since followed in Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394 and Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762. The clauses of second paragraph of the Sealed Cover Procedure considered in Janakiraman were not those involved in the present case and hence that decision is of no avail to the respondent. In the other two decisions the facts warranted application of the ratio contained in Janakiraman. The added factor in these two cases was that the public servant concerned had been exonerated of the charges framed by the criminal Courts. In the present case the respondent is still facing the trial for serious offences, and hence the situation is different.
17. We may also point out, in this context, that in Delhi Development Authority v. H. C. Khurana, (1993) 2 JT (SC) 695 and Union of India v. Kewal Kumar, (1993) JT (2) (SC) 705 this Court found that the ratio in Janakiraman is applicable only to the situations similar to the cases discussed therein, and hence the Sealed Cover Procedure resorted to by the DPC in those two cases was upheld by this Court.
18. In our opinion the Tribunal has erred in overlooking paragraph 7 of the "Sealed Cover Procedure" (supra) and hence the direction issued by it as per the impugned judgment cannot be sustained. We, therefore, allow these appeals and set aside the said direction.
17. In Y.L. Bankas case (supra) decided by the High Court of Delhi on 15.09.2006, the facts were that the respondent No. 2 joined the appellant as Assistant Engineer on 1.3.1969 and was subsequently promoted as an Executive Engineer (EE) on 1.3.1977. For consideration for promotion to the post of Superintending Engineer (SE), a meeting of the Departmental Promotion Committee ('DPC') was held on 29.6.1984. At that point of time there was one clear vacant post of SE and another became available on account of repatriation of one of the SEs. At this meeting, the eligible EEs, including the respondent No. 2 herein, were considered and respondent No. 2 was placed at serial No. 6 in the panel, subject to clearance by the vigilance. Against the two posts of SEs that were available, two officers namely Shri Amit Biswas (at Sl. No. 2 in the panel) and Shri M. Kuppuswamy (at Sl. No. 4 in the panel) were promoted on 30.8.1984. With this, the regular vacancies available in the post of SE were filled up. Two other officers namely Shri S.K. Garella and Shri H.C. Gupta who were at serial Nos. 3 and 5 in the panel respectively were promoted on current duty charge basis by an order dated 27.3.1985. The officer at serial No. 1 (who was respondent No. 1 herein) was not promoted since vigilance proceedings were pending against him. The admitted position is that this panel was valid only for one year. On 14.10.1985, respondent No. 2 was issued a charge sheet. The DPC which met again on 21.11.1985 considered the name of Respondent No. 2. However, because of the pending disciplinary proceedings in respect of which a charge sheet had already been issued to Respondent No. 2, the recommendation was kept in a sealed cover. This position continued Page 2639 during the meetings of the DPC on 11.3.1987 and 14.4.1987. The disciplinary proceedings consequent upon the charge sheet ended on 29.3.1988 with the respondent No. 2 being awarded a penalty of censure. At its next meeting on 7.2.1989, the DPC did not recommend the promotion of respondent No. 2. Ultimately at the meeting of the DPC on 28.11.1990, the case of respondent No. 2 was recommended for promotion and he was promoted as SE on 27.12.1990. On 17.5.1985, soon after promotion of Shri H.C. Gupta as SE on current duty charge basis, Respondent Nos. 1 and 2 herein jointly filed Writ Petition (C) No. 1190 of 1985 in this Court stating that they had both been empanelled in the merit list by the DPC which met on 29.6.1984. Despite this respondent Nos. 4 to 7 had been given promotions overlooking the claims of Respondent Nos.1 and 2 herein. Accordingly, the writ petition sought quashing of the order dated 13.8.1984 and 27.3.1985 whereby Respondent Nos.4 to 7 were promoted to the post of SE. The writ petition also sought a writ of mandamus to the respondents directing the implementation of the panel for promotion to the post of SE in respect of Respondent Nos. 1 and 2 herein. Before the learned Single Judge reliance was placed on the judgment of Hon'ble Supreme Court in Union of India v. K.V. Jankiraman to contend that respondent No. 2 could not have been denied the promotion which had been granted to Shri H.C.Gupta on account of certain pending departmental proceedings when in fact, such proceedings were commenced only on 14.10.1985 long after the DPC had met. The learned Single Judge accepted this submission and held that the Respondent No. 2 ought to have been considered for promotion to the post of SE at the DPC held on 29.6.1984 on which date no charge sheet had been issued. The learned Single Judge partly allowed the writ petition of Respondent No. 2 by holding that he would be entitled to a notional promotion with effect from 30.8.1984 but would not be entitled to any salary in the said higher post. The Division Bench of the High Court held as under:-
8. In our view, the learned Single Judge appears to have erred in proceeding on the premise that on the date of meeting of the DPC, i.e. on 29.6.1984, Respondent No. 2 was not considered for promotion on account of the sealed cover procedure. The facts, however, reveal that as on 30.8.1994 there were only two regular vacancies in the post of SE against which the two persons above Respondent No. 2 were promoted. There was no further regular vacancy in the post of SE as on that date against which respondent No. 2 could have been appointed as SE. Further, the person immediately above the Respondent No. 2 in the panel, i.e. Shri H.C. Gupta, was given promotion only on current duty charge basis and not on a regular vacancy and that too from 27.3.1985. Therefore, the failure to promote respondent No. 2 to the post of SE on 29.6.1984 was plainly because there were no regular vacancies and not because certain departmental proceedings were pending or contemplated against Respondent No. 2. Therefore, the denial of promotion to the Respondent No. 2 as on 29.6.1984 was not on account of the sealed cover procedure. In those circumstances, the question of applying the judgment in K.V. Jankiraman to the facts of the present case does not arise. The consequent direction that the respondent No. 2 must be given his promotion (although without any arrears of salary) with effect from 30.8.1984 cannot also, therefore, be sustained.
9. Moreover, in K.V. Janakiraman it was observed (SCC para 29, p. 123) as under:
An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests.
We also notice that the Respondent No. 2 has also proceeded on a basic misconception which is evident in the affidavit dated 10.2.1998 filed in the LPA where he states in para 4 that although at the DPC meeting held on 29.6.1984, the respondent No. 2 was empanelled at serial No. 6, "however the decision of the said DPC was kept in the sealed cover due to the pending enquiry against him." The facts set out hereinabove clearly show that this was not the reason why respondent No. 2 was not promoted to the post of SE as on 29.6.1984. On the other hand, it has been categorically stated in the memo of appeal by the appellant that there were no available regular vacancies in the post of SE as on that date against which Respondent No. 2 could have been promoted.
10. For all of the above reasons, the impugned judgment dated 9.2.1996 passed by the learned Single Judge is set aside and Writ Petition (C) No. 1190 of 1985 in so far as it concerns Respondent No. 2 is dismissed. The appeal is accordingly allowed with no order as to costs.
18. In R.R. Sahays case (supra), the High Court of Delhi observed that completing the procedural formalities and noting that no vigilance inquiry was pending against him, his name was considered at a Departmental Promotion Committee which met on 28.6.2010. The Committee opined that he was fit for promotion and thus placed his name at serial No.2 in the select panel for the reason one Mr.R.R.Bhardwaj, Deputy Inspector General and senior to Sh.R.R.Sahay was also found fit for promotion. The panel, consisting of two names, with that of Sh.R.R.Bhardwaj at serial No.1 and that of Sh.R.R.Sahay at serial No.2 was sent for approval of the Appointment Committee of Cabinet and learned counsel for the parties were not at variance that as per the Rules of Appointment/Promotion recommendations of Departmental Promotion Committee had to be approved by the Appointment Committee of Cabinet before the same could be given effect to. Tthe Appointment Committee of Cabinet gave the necessary approval on 16.8.2010. By that date one out of the two anticipated vacancies to the post of Inspector General had already fallen due and thus on 16.8.2010 itself an order granting promotion to Sh.R.R.Bhardwaj was issued. The second anticipated vacancy, due to the superannuation of Sh.D.S.Badwal, Inspector General, fell due on 31.8.2010 i.e. the date on which Sh.D.S.Badwal superannuated. Sh.R.R.Sahay was expecting an order to be issued promoting him to the post of Inspector General which fell due on 31.8.2010, but found to his dismay that no such order was issued. The reason why the order promoting him was not issued was a reference made to the Ministry of Home Affairs, whether or not Sh.R.R.Sahay should be promoted on account of the fact that the department took serious note of the fact that he proceeded on casual leave for 5 days with effect from 4.7.2010 but did not report for duty on 12.7.2010 and kept on informing that he was unwell. As per the department, petitioner was holding the charge of Deputy Inspector General (Special Security Group) and (Government Building Security); an Important Security Assignment for the reason the Special Security Group looks after the security of protected persons placed in Category, X, Y and Z and the Government Building Security Unit manages the security of 49 government buildings in Delhi and on account of the Commonwealth Games to be held in Delhi in October 2010 the petitioner was directly incharge of the operational preparedness of the men working under him. It was opined that the attitude of the petitioner showed poor leadership qualities casting a doubt on his ability to shoulder the responsibilities of an Inspector General. It was also noted that once in the past also the petitioner had likewise overstayed sanctioned leave for which he was warned. Dismissing the writ petition, the High Court of Delhi held as under:
13. The issue was debated between the parties with reference to the latest memorandum on the subject, being the Office Memorandum dated 31.7.1991 issued by the Government of India in light of the decision of the Supreme Court reported as UOI vs. K.V.Janakiraman AIR 1991 SC 2010,which Office Memorandum reads as under:-
x x x x x x x x x
14. Relevant would it be to note that the respondents heavily relied upon para 7 of the Office Memorandum.
15. In K.V.Janakiramans case (supra), the Supreme Court considered Office Memorandum dated 30.1.1982 pertaining to what is commonly understood as Sealed Cover Procedure. The Supreme Court held that a Government Servant has a Constitutional Right to be considered for promotion as per Rules, but right to promotion is not absolute. It was held that if on date when a Departmental Promotion Committee meets, a Civil Servant is under suspension or a charge-sheet (departmental) is issued or a Criminal Investigating Agency has filed a charge-sheet in the Court of Competent Jurisdiction, recommendations pertaining to the said Government Servant have to be kept in a Sealed Cover and the Committee has to consider the candidature excluding the misdemeanor alleged.
16. However, relevant would it be to note that applying the aforesaid Statement of Law, to the facts before it, and noting that the DPC had met in July 1986 and a charge-sheet was issued in August 1987 to initiate departmental proceedings, the Government Servant concerned was held not entitled to be promoted and recommendations of the DPC were directed to be kept in abeyance. In para 17 of the decision, the Supreme Court held that law cannot be applied mechanically.
17. This is the ratio which can be culled out from a subsequent decision of the Supreme Court reported as State of M.P. vs. Sayeed Nazeem Zahir AIR 1993 SC 116. The DPC had met on 20.10.1987. The charge-sheet was issued on 15.4.1988. The misdemeanor was under consideration i.e. preliminary inquiry was being held and matter was being considered whether the chargesheet should be issued by which time the DPC had met and since a chargesheet was finally issued, the Supreme Court held that recommendations pertaining to the Government Servant i.e. Sayeed Nazeem Zahir had to be kept in a Sealed Cover. The mechanical decision of the High Court which had held that since no charge-sheet was issued when DPC met required Sealed Cover Procedure not to be followed was overruled by the Supreme Court which specifically noted para 17 of the decision in K.V.Janakiramans case (supra).
18. It is apparent that what was declared as the law by the Supreme Court pertaining to the Office Memorandum dated 30.1.1982 was crystallized in para 7 of the Office Memorandum dated 31.7.1991 and thus we may safely eschew a discussion of such decisions which were cited before us in which the Office Memorandum dated 30.1.1982 issued by the Government of India were considered or Office Memorandums issued by Public Sector Undertakings were considered and were akin to the language of the Office Memorandum dated 30.1.1982 and in this category would fall the recent decision of the Supreme Court reported as AIR 2007 SC 1706 Coal India Ltd. vs. Saroj Kumar Mishra, where the Office Memorandums considered were dated 27.6.1979 and 8.1.1981 issued by Coal India Ltd. Suffice would it be to state that said Office Memorandums did not have a clause akin to clause-7 which this Court is considering.
19. To be fair to the writ petitioners we do note that they relied upon decisions wherein the Supreme Court had held that a Government Servant cannot be denied promotion if a charge-sheet is issued after the DPC has found him fit for promotion or in cases where the recommendations of the DPC were kept in a sealed cover on account of the Government Servant being charge-sheeted and on being exonerated, sealed cover was not opened on the ground that a subsequent charge-sheet had been issued against the Government Servant. The common ratio of the decisions was that it is only charge-sheets issued prior to the date when DPC met which would be relevant and not the subsequent. But, we may hasten to add that in no decisions, was para 7 of the Office Memorandum, which we are considering, the subject matter of consideration.
20. A Division Bench of this Court, in an unreported decision dated 17.11.2006 in WP(C) No.10541-43/2006 UOI vs. R.C.Sehgal?, setting aside the decision of the Central Administrative Tribunal in view of an Office Memorandum having pari-materia language with clause-7 of the Office Memorandum dated 31.7.1992, held that R.C.Sehgal, who was empanelled for promotion by the DPC on 31.3.2005 could not be promoted in view of the fact that by the date a vacancy arose i.e. 31.12.2005 due to retirement of an incumbent holding the promotional post, had come under a cloud and a decision was taken in the file to initiate disciplinary action against him.
21. We note that there is a direct decision of the Supreme Court on the point, being the decision reported as AIR 2000 SC 2337 UOI & Anr. vs. R.S.Sharma where the Supreme Court had considered the Office Memorandum dated 31.7.1979 and evidenced by paras 14 to 16 of the decision, had considered the effect of para 7 of the Office Memorandum. The contra view taken by the Central Administrative Tribunal (as propounded by the petitioners herein) was set aside and the Appeal filed by the Union of India was allowed.
22. A decision dated 2.12.2010 in WP(C) No.5987/2010 Government of NCT Delhi & Ors. vs. Deb Singh Bhakuni & Ors.? was also relied upon by the petitioners to support their contention and since the said decision has been authored by one of us; Pradeep Nandrajog, J., we may clarify on the said decision.
23. The decision had considered the Office Memorandum dated 31.7.1991 and had noted that when the DPC met on 15.5.2008 and cleared the name of Deb Singh Bhakuni he was empanelled for promotion and on said date neither a charge-sheet for departmental inquiry was under contemplation or was issued and nor was any charge-sheet by a Criminal Investigating Agency filed in a Court. It was noted that even till 2.12.2010 when decision was pronounced by an oral order in Court, was any decision taken to initiate Departmental Proceedings against Deb Singh Bhakuni nor had any Criminal Investigating Agency filed a charge-sheet against him in the Competent Court. It was further noted that an FIR had been registered on 2.1.2006 pertaining to a stated financial bungling when Deb Singh Bhakuni as a Senior Accounts Officer and even till 2.12.2010 no charge-sheet was filed. It was on said facts it was held that Deb Singh Bhakuni had a right to be promoted.
24. Needless to state as held in K.V.Janakiramans case (supra) and as followed in Sayeed Nazeem Zahirs case (supra) law cannot be applied mechanically.
25. We may only add that Courts have to balance the public interest which demands the accountability of/from every Government Servant vis-`-vis the right of a Government Servant to a speedy investigation of his conduct and not that his conduct being investigated should turn out to be a test of his patience.
26. If the Courts find equities in favour of a Government Servant on account of preliminary investigations continuing for years together and neither departmental action initiated nor a charge-sheet before a Competent Criminal Court filed and the Government Servant is otherwise found fit to be promoted, in those special circumstances, which create equities in favour of the Government Servant, appropriate directions can always be issued.
27. Turning to the facts of R.R.Sahay, it may be noted that the CISF Authorities have taken a serious view of the petitioner evading responsibilities and the period in question precedes the date when a vacancy became eligible to promote him and on a reference made to the Cadre Controlling Ministry a conscious decision has been taken to withhold his promotion and initiate disciplinary proceedings against him. Thus, we hold that he would not be entitled to be promoted as claimed by him. But considering that not much preliminary investigation is required, would direct that a decision pertaining to a charge-sheet being issued to him be taken within 4 weeks of date of receipt of this order. Further action be chartered as per Law.
28. Qua Mohd.Rafique Hossain, facts evidence that when the DPC met on 3.9.2003 a departmental decision had already been taken in August 2009 to initiate disciplinary proceedings against him and for which a draft chargesheet was prepared and sent to the Cadre Controlling Ministry for concurrence. Vacancies accrued only on 1.10.2009 and by which date, as noted herein above, a decision had already been taken in the file to initiate disciplinary proceedings against him and even a draft charge-sheet had been prepared. We note that as against him a charge-sheet stands issued on 18.3.2010 pertaining to major penalty proceedings, and thus we hold that Mohd.Rafique Hossain is not entitled to the relief prayed for, save and except a direction that the departmental inquiry be expedited.
29. Relief claimed by the petitioners is denied and the 2 writ petitions standdisposed of in terms of paras 27 and 28 above.
30. No costs.
19. We have heard the learned counsel for the applicant Shri M.K. Bhardwaj and the learned counsel for the respondents Shri Manish Garg. We have perused the entire documents available on record and all the judgments relied upon by them in support of their arguments. We have also perused the minutes of the Departmental Promotion Committee made available by the respondents. The admitted facts in the present case are that the applicant is an Assistant Accounts Officer eligible to be considered for promotion to the post of Accounts Officer. His name was considered by the DPC held on 16.11.2011. However, according to the Vigilance Clearance Report (`VCR for short) dated 25.08.2011 placed before it, Disciplinary Authority has already ordered to initiate major penalty proceedings against him. The DPC recommended him FIT for promotion subject to fresh VCR. Accordingly, fresh VCR was called for but there was no change in position even as on 25.11.2011. The position was again placed before the Review DPC held on 27.12.2011 which again recommended him FIT subject to fresh VCR. His case was first placed before the Appointing Authority i.e. Finance Member (DDA) on 05.12.2011, on the recommendations of the DPC held on 16.11.2011. But the Finance Member did not accord his approval. As a result, his immediate junior Shri B.D. Kukreti (Seniority No. 81) has been promoted to the post of Accounts Officer vide order dated 07.12.2011. Thereafter, the recommendation of the review DPC held on 27.12.2011 was placed before the Finance Member on 28.12.2011. Again, the Finance Member did not accord his approval. Thereafter, his other juniors S/Shri B.P. Banduni and Ashok Kumar Sharma were promoted as AOs vide order dated 29.12.2011. The applicant made his representation dated 10.01.2012. The respondents examined his case and observed that as per guidelines on seniority in terms of the judgment of the Supreme Court in the case of Union of India Vs. K.V. Janakiraman, no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc as clarified by the Department of Personnel and Training vide OM No. 22012/1/99-Estt (D) dated 25.10.2004. Meanwhile, the respondents have issued Memorandum dated 29.02.2012 proposing to hold an enquiry against the applicant under Regulation 25 of the DDA (Conduct, Discipline and Appeal) Regulations, 1999. Thereafter, Finance Member, again vide his note dated 23.04.2012, did not agree to the proposal of promotion of the applicant particularly when he was charge sheeted as stated above. The said note is reproduced as under:
Decision to issue major penalty Charge-Sheet was taken by the Disciplinary Authority before the DPC meeting was held. The case, however, remained pending with CVC for furnishing their advice. I understand, in case of Group B Officers, CVCs advice is not required. It is for these reasons that the then Finance Member while approving promotions to the post of Accounts Officer did not consider the name of Sh. Mahavir Singh, A.A.O. I have also considered the notes of CLA and CVO at page 12-13. As per the judgement of the Honble Supreme Court in the case of Union of India Vs. K.V. Janakiraman, no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of Charge-Sheet etc. In this particular case, the preliminary investigation was already complete based on which the Disciplinary Authority had taken a view for issue of major penalty Charge-Sheet. It is, thus, clear that the stage of issue of Charge-Sheet had already reached, while DPC meeting was conducted. CVO has also indicated the same in his note at page 13. In view of these facts, I do not agree to the proposal of promotion of Sh. Mahavir Singh, AAO to the post of Accounts Officer, more so when the Charge-Sheet stands issued on 29.2.2012.
Sd/-
(Finance Member) 23.4.2012.
20. Now let us examine the rule position. As a result of the judgment in Janakiramans case (supra), the Govt. of India (Department of Personnel & Training) has in supersession, reviewed all the instructions on the subject (OM No. 39/3/59-Estt.(A) dated 31.8.1960, OM No. 7/28/63-Estt.A dated 22/12/1964, OM No.22011/3/77-Estt.(A) dated 14.7.1977, OM No.22011/1/79-Esttt.(A) dated 12.1.1988 and OM No.22011/1/91-Estt.(A) dated 31.7.1991). As all the instructions hitherto issued by the Government have been compiled in OM No.22011/1/79-Estt.(A) dated 30.1.1982, it is not necessary to examine those earlier OMs.
21. In OM No. 22011/1/79-Estt. (A) dated 30.01.1982, it has been stated that as per the then existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (hereinafter referred to as the `DPC') at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it was held that the suspension was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/court proceedings. However, no arrears of salary are paid in respect of the period prior to the date of actual promotion. Vide O.M. dated 12.01.1988, the said O.M. had undergone some change in Para 2 thereof, the cases of Government servants to whom sealed cover procedure was applicable were stated as under:
2. 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 other agency, departmental or otherwise."
22. Subsequently, vide OM No. 22011/1/91-Estt. (A) dated 31.07.1991, the restriction imposed in Clause (iv) of Para 2 of the aforesaid OM dated 12.01.1988 was removed and made the following clarifications:-
i. All cases kept in sealed cover on date of this O.M. on account of conditions obtainable in para 2[iv] of the O.M. dated 12.1.88 will be opened. If the official had been found fit and recommended by DPC, he will be notionally promoted from the date his immediate junior had been promoted. The pay of the higher post would, of course, be admissible only on assumption of actual charge in view of provisions of FR 17[i] [since only officiating arrangements if necessary and giving promotion in such cases].
If any case is in a sealed cover on account of any of the other conditions mentioned in para 2[i] to 2[iii] of the O.M. Dated 12.1.88, the case will continue to be in the sealed cover.
On opening of the sealed cover because of deletion of para 2[iv], if an officer is found to have been recommended as unfit by the DPC, no further action would be necessary.
23. The aforesaid OM dated 30.1.1982 as modified and clarified vide OMs dated 12.1.1988 and 31.07.1991 was in operation when the Supreme Court considered the question as to when for the purposes of sealed cover procedure, the disciplinary/criminal proceedings can be said to have commenced in K.V. Jankiramans case (supra) on 27.08.1991. The Full Bench of this Tribunal had already held that only when charge-memo in a disciplinary proceedings or charge sheet in a criminal prosecution is issued to employee, 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. The Apex Court agreed with the aforesaid view of this Tribunal and further held. 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., was not acceptable because it would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. The Apex Court further clarified 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. However, the Apex Court did not agree with the findings of this Tribunal that denial of arrears prior to the actual promotion is violation of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them.
24. In view of the aforesaid judgment of the Apex Court in K.V. Jankiramans case (supra) the respondents have issued the very comprehensive OM No. 22011/4/91-Estt.(A) dated 14.9.1992 in supersession of all the earlier instructions on the subject. The said OM says that only in the case of the following three categories of employees, DPC should adopt sealed cover procedure:-
(i) Government servant 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.
The aforesaid OM dated 14.9.1992 is reproduced as under:-
Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.
The undersigned is directed to refer to Department of Personnel and Training OM 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 judgement dated 27.08.1991 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 (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.
2. 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 a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above alongwith other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including Unfit for Promotion, and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed Findings regarding suitability for promotion to the grade/post of in respect of Shri .. (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri . The proceedings of the DPC need only contain the note The findings are contained in the attached sealed cover. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.
2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.
3. On the conclusion of the disciplinary case/criminal prosecution which result in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the juniormost officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstance where such denial can be justified.
3.1 If any penalty is imposed on the Government servant 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 DPC in the normal course and having regard to the penalty imposed on him.
3.2 It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules warning should not be issued as a result of such proceedings. If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of censure should be imposed.
4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the case of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion.
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects :-
(a) Whether the promotion of the officer will be against public interest; (b) Whether the charges are grave enough to warrant continued denial of promotion; (c) Whether there is any likelihood of the case coming to a conclusion in the near future; (d) Whether the delay in the finalisation of proceeding, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and (e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that :-
(i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and
(ii) the promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to cancel the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3 If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4 If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical ground and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedure outlined in the preceding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent regular vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
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 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 OM will be applicable in his case also.
8. In so far as the personnel serving in the Indian Audit and Accounts Department are concerned, these instructions have been issued after consultation with the Comptroller and Auditor General of India.
25. The Department of Personnel and Training vide OM No. 22012/1/99-Estt. (1) dated 25.10.2004 once again explained the cases of persons whose conduct is under investigation or against whom a charge-sheet is pending. A perusal of the aforesaid OM would reveal that it is nothing but reiteration of the earlier instructions issued in this regard vide OM No dated 14.09.1992 and the judgment of the Apex Court in K.V. Jankiramans case (supra). It clarifies that only a bare statement that case of an employee in the zone of consideration/extended zone of consideration is covered by any of the three situations indicated in para-2 of the said Office Memorandum dated 14.09.1992 is to be furnished to the DPC to enable it to place its recommendations in the sealed cover. No other details about the pending inquiry or the nature of charges etc. are to be furnished to the DPC lest these details weigh with the DPC in making its recommendations, which are to be placed in the sealed cover. In other words, in the case of an employee in the zone of consideration covered by any of the three situations, only those facts are to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, a simple vigilance clearance would need to be furnished. Vigilance clearance/status would have no other significance and would not be a factor in deciding the fitness of the officer for promotion on merit. Again, reiterating the law laid down by the Apex Court in K.V. Jankiramans case (supra), the OM emphasises that merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge-sheet etc. Only option left to the Government is that if the complaint against the Government servant is very serious and the matter is still under investigation, the employee concerned may be placed under suspension in which circumstances, no promotion needs to be given during its pendency. The text of the aforesaid OM dated 25.10.2004 is extracted below:-
26. Again the Department of Personnel & Training vide their OM No. F. No. 22034/4/2012-Estt. (D) dated 02.11.2012 reviewed all the instructions pertaining to vigilance clearance for promotion. The said OM reiterated the three circumstances in which the promotion can be denied as stated in the earlier OMs dated 14.09.1992 and 25.10.2004 and held that Withholding of vigilance clearance to a Government servant who is not under suspension or who has not been issued a charge sheet and the disciplinary proceedings are pending or against whom prosecution for criminal charge is not pending may not be legally tenable in view of the procedure laid down in the aforesaid OMs. The issue of promotion of an officer who may be technically cleared from vigilance angle but in whose case it may not be appropriate to promote him/her in view of doubtful integrity or where a charge sheet is under consideration etc., the DOP&T clarified again that Government is within its right to suspend the official. In that case, the officers case for promotion would automatically be required to be placed in the sealed cover. The said OM categorically stated as under:
When a Government servant comes under a cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penalty/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued or the officer is placed under suspension. The pendency of preliminary investigations prior to that stage is not sufficient to adopt the sealed cover procedure.
27. In order to clear ambiguity, if any, in these kinds of cases, the Apex Court in the case of S.K. Sinha, Chief Enforcement Officer vs Videocon International Ltd (2008) 2 SCC 492, has held as under:-
"24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings" covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI."
In Fakhruddin Ahmad Vs State of Uttaranchal (2008) 17 SCC 157, the Apex Court has also held as under:-
"It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
Again, in the case in the case of Esher Singh vs State of A.P. (2004) 11 SCC 585, the Apex Court has stated as under:-
"The person becomes an accused for the purpose of trial after the charges are framed."
28. Therefore, in the matter of promotion, there is no question of any deviation from the law laid down by the Apex Court in K.V.Jankiramans case (supra) that it is only when a charge-memo in a disciplinary proceedings is issued to the employee that it can be said that the departmental proceedings have been initiated against him. It is based on the aforesaid judgment, the Department of Personnel & Training vide OM dated 14.9.1992 have issued the requisite instructions in supersession of all the earlier instructions on the subject and they remain unchanged so far. Therefore, only in the cases of the (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 a criminal charge is pending, the respondents can adopt sealed cover proceedings. In no other case, promotion from the due date can be denied, withheld or postponed in the case of a Government servant. The aforesaid position has been reiterated by the Government in its last OM in the series issued on 25.10.2004 (supra). It has been stated in the said OM that no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/dereliction of duty etc., there is a serious complaint and the matter is still under investigation of CBI or otherwise, the Government is within its right to suspend the official. In that case, the officers case for promotion would automatically be required to be placed in the sealed cover.
29. Admittedly, the Applicant was charge-sheeted only on 29.02.2012. But he was considered for promotion by the DPC on 16.11.2011. As none of the three exigencies, as mentioned in the OMs of the Department of Personnel & Training dated 14.09.1992 and 25.10.2004, in our view, the Respondents should not have withheld the vigilance clearance in his case on 16.11.2011. However, the Appellate Authority, namely, the Finance Member has taken an absolutely contrary stand and in violation of the law laid down by the Apex Court in K.V. Jankiramans case (supra), holding that the stage of issue of charge sheet had already reached in the case of the Applicant on 16.11.2011 when the preliminary enquiry was held in his case. As held by the Apex Court in Esher Singhs case (supra), in departmental proceedings, there is no question of having the stage of issuing the charge sheet reached but the charge sheet has to be actually issued. If the said stand of the Respondent is accepted, at the cost of repetition, we may say that as held by the Apex Court in K.V. Jankiramans case (supra) itself, it may lead to a situation where any Government servant can be deprived of his promotion from the due date by initiating a disciplinary proceedings against him, just immediately prior to the date of the DPC. That is the reason the DOP&T has again reiterated in its OM dated 25.10.2004 that no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/dereliction of duty etc., there is a serious complaint and the matter is still under investigation of CBI or otherwise, the Government is within its right to suspend the official. In that case, the officers case for promotion would automatically be required to be placed in the sealed cover.
30. Further, in our considered view, the Applicants case cannot be defeated on the basis of the observation of the Apex Court in K.V. Jankiramans case (supra) that an employee has no right to promotion but he has only a right to be considered for promotion. The Apex Court has stated that the promotion to a post and more so, to a selection post, depends upon several circumstances and to qualify for promotion, the least that is expected of an employee is to have an unblemished record to ensure a clean and efficient administration and to protect the public interests. As held in Union of India & Ors. Vs. Sangram Keshari Nayak (2007 (6) SCC 704), the right to be considered for promotion is a fundamental right and it involves effective, purposeful and meaningful consideration and the promotion can be denied only on the basis of valid rules. The case of Kewal Kumar (supra) relied upon by the respondents has no application in this case. In that case, the CBI had already recorded the FIR and the competent authority has duly taken the decision to initiate disciplinary proceedings for imposition of major penalty. Therefore, the sealed cover procedure in those circumstances cannot be faulted. In the case of H.C. Khurana (supra) also, the Apex Court held that it is only if the decision to initiate disciplinary proceedings has already been taken and translated into action by dispatching the charge sheet, sealed cover procedure can be adopted. Again, in R.S. Sharmas case (supra), a formal sanction has already been accorded to prosecute the employee concerned. Therefore, the recommendation made by the DPC was kept in sealed cover until he was completely exonerated. In Y.L. Bankas case also, charge sheet was already issued to the employee before the DPC was held. Similarly, in R.R. Sahays case (supra) relied upon by the respondents, he was not given promotion for different reason. In his case, the CISF authorities have taken a serious view of the petitioner evading responsibilities and the period in question precedes the date when a vacancy became eligible to promote him and on a reference made to the Cadre Controlling Ministry, a conscious decision has been taken to withhold his promotion and initiate disciplinary proceedings against him.
31. We are, therefore, of the considered view that the denial of vigilance clearance to the applicant to enable the DPC to consider his promotion to the post of Accounts Officer on 16.11.2011 was absolutely illegal and wrong. Consequently, we allow this OA and declare that the order of the respondents in not promoting the applicant to the post of Accounts Officer ignoring the recommendations of the DPC held on 16.11.2011 is illegal, arbitrary and unconstitutional. Resultantly, we declare that the applicant is entitled to be promoted as Accounts Officer w.e.f. 7.12.2011, i.e., the date from which his immediate junior Shri B.D. Kukreti was promoted as Accounts Officer with all consequential benefits. The respondents shall carry out the aforesaid directions within a period of one month from the date of receipt of a copy of this order. In the above facts and circumstances of the case, the Applicant is also entitled for a cost of Rs.7500/- which shall also be paid to him within the aforesaid period.
(DR. VEENA CHHOTRAY) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD