Central Administrative Tribunal - Ernakulam
R. Rajendran vs Union Of India on 3 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No. 628 of 2008 Friday, this the 3rd day of April, 2009 C O R A M: HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER HON'BLE MS. K. NOORJEHAN, ADMINISTRATIVE MEMBER R. Rajendran, S/o. N.K. Ramakrishna Panicker, [Deputy Conservator of Forests (Non-Cadre) (Retd.), Agasthiavanam Biological Park (SIP), Forest Headquarters,Trivandrum -14], Residing at "SARAS", No. TC 75/142, Anayara P.O., Trivandrum - 29 ... Applicant. (By Advocate Mr. T.C. Govindaswamy) v e r s u s 1. Union of India, represented by The Secretary to the Government of India, Ministry of Forest & Environment, New Delhi. 2. State of Kerala represented by The Chief Secretary to the Government of Kerala, State Secretariat, Trivandrum. 3. The Principal Secretary, Forest & Wild Life Department, Trivandrum - 4. 4. Union Public Service Commission, Shajahan Road, Dholpur House, New Delhi - through its Secretary ... Respondents. (By Advocates Mr. TPM Ibrahim Khan, SCGSC (R1), Mr. R. Prem Sanker, GP (R2-3) and Mr. Thomas Mathew Nellimoottil (R4) (The Original Application having been heard on 20.01.09, this Tribunal on 3.4.09 delivered the following) : O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER The applicant, eligible to be considered for appointment by promotion from State Civil Service was considered and his name figured in the select list but on provisional basis, since there was a criminal case pending against him. Thus, from 1994 onwards, the applicant's name figured in the select list as hereunder but no appointment had been made since no integrity certificate was furnished by the State Government in view of the pendency of the Criminal Proceedings. The proceedings in the criminal court came to an end by judgment dated 24th October 2008 and the Court has held as under:
"...the prosecution failed to prove the offences against the accused and therefore, they are only to be acquitted.
18. Hence, I find the accused 1 to 6 not guilty of the offences punishable under Ss. 13(2) r/w 13(1)(d) of P.C. Act, 1988 and Ss 468,471 & 120 B of I.P.C. and they are acquitted under S 248(1) of Cr. P.C. of the aforesaid offences. They are set at liberty forthwith. The bail bonds executed by them stand cancelled."
2. The applicant now claims that the select list as of 1994 should be acted upon and he should be promoted from 1994 onwards with all consequential benefits.
3. Brief facts of the case as contained in the O.A. are as under:
(a) The grievance of the applicant relates to his non-promotion to the cadre of Indian Forest Service (IFS for brevity) under the Indian Forest Service (Appointment by Promotions) Regulations, 1966, despite having been included in all the select lists prepared for the period from 1994 to 2005. The applicant superannuated from Kerala State Service on 30.04.2006 and the select list for the year 2006 is yet to be notified.
(b) The applicant a member of the Scheduled Caste community was recruited as Assistant Conservator of Forests and appointed with effect from 1.1.1984. On completion of 8 years of regular service, the applicant became entitled to be considered for appointment by promotion to the IFS cadre under the Indian Forest Service (Appointment by Promotions) Regulations, 1966. The Departmental Promotion Committee which met on 17.01.2000 for considering the candidates for promotion to IFS cadre, selected the applicant and placed him in the select list for the year 1994. The inclusion of the applicant's name was made provisional. When the Selection Committee met subsequently on 11th August, 2003 for preparation of select list for all the years 1995 to 2002, the applicant was again placed in the select list for all the years except for the year 1998 and 2001 when no select list was prepared for want of vacancy. This time also, the applicant's name was again included only on provisional basis for want of an Integrity Certificate to be submitted by the 2nd and 3rd respondents. The applicant was again considered when the Selection Committee met on 22.12 2006 for preparation of the select list for the years 2003 to 2005 and again, the applicant was found suitable and placed in the select list for all these years, but as provisional on account of the alleged pendency of certain judicial/departmental proceedings against the applicant. The applicant had resorted to judicial remedies.
(c) In O.A. No. 843/2002, the Tribunal was pleased to notice that, of the several cases registered against the applicant during 1992, Crime No. 18 was still remaining pending. It was also observed that the conduct of the applicant was still under cloud as he was accused in a vigilance case pending before the Vigilance Commissioner and Special Judge, Trivandrum. For this reason, the Tribunal felt that the decision to withhold the applicant's Integrity Certificate was proper and justified. Vide Annexure A/4 order dated 8.1.2008 in O.A. No. 46/2006, this Tribunal again noticed that despite the directions of the Government the Anti Corruption Bureau was yet to move the Enquiry Commissioner and Special Judge, Trivandrum, to withdraw the proceedings Crime No.18 (CC 30/02). This Tribunal also noticed that the case No. VC/18/SIU(CC.30/02) is still pending and that the same had not been withdrawn or disposed of. It was also notice that there was considerable and undue delay in conducting the case from 2002 onwards. The respondents No. 2 and 3 were directed to take expeditious steps to bring the case pending against the applicant for logical conclusions so that his case for membership in the IFS is not delayed any further. After disposal of OA No. 46/06, the Vigilance case No.VC/18/SIU(CC.30/02) was finally heard and disposed of by judgement dated 24.10.2008 (Annexure A5) holding that the prosecution has failed to prove the allegations against the applicant.
As the order Annexure A5 has been rendered, the respondents are bound to consider and promote the applicant to the IFS with retrospective effect from 1.1.94, i.e. when the applicant's promotion fell due. After the applicant's retirement, the respondents instituted one more proceedings against the applicant under Case No. VC2/2000/SCT(CC.8/2006). In that case, the charge sheet is yet to be framed by the Court of Enquiry Commissioner and Special Judge, Trivandrum, and therefore, proceeding cannot be said to be pending against the applicant for the purpose of promotion.
4. Being aggrieved, the applicant has filed the present O.A. with the following prayer:-
(i) Declare that the non-feasance on the part of the respondents to consider and promote the applicant to the cadre of IFS forthwith with retrospective effect from 1.1.1994, or with effect from the date from which those who were included in the select list for the year 1994-95 is arbitrary, discriminatory, contrary to law and hence, unconstitutional;
(ii)Direct the respondents to initiate appropriate steps as might be necessary to render as unconditional, the inclusion of applicant's name in A2 and A3 as the case may be and to promote the applicant forthwith to the IFS cadre with effect from 1.1.1994 or with effect from such date from which those who have been included in the 1994-95 select list was so promoted;
(iii)Direct the respondents to grant the applicant all consequential benefits including arrears of pay and allowances arising out of the declaration and the directions in para (i) and (ii) above.
5. Response of the respondents as per reply is as under:
(a) In the reply filed on behalf of the respondent No. 2, it has been stated that though the applicant has been provisionally included in the select list of 1995, 1996, 1997, 1999, 2000, 2002, 2003, 2004 and 2005, the appointment shall be subject to clearance of disciplinary proceedings pending against him and granting of integrity certificate.
This respondent could not issue the integrity certificate since several vigilance enquiry/vigilance cases were pending during that period. It has further been stated that at present a Vigilance Case VC2/00/SCT is pending trial as CC No. 8/06 before the Court of Enquiry Commission and Special Judge, Trivandrum.
(b) In the reply filed by the respondent No.4, it has been stated that the matter regarding conclusion or withdrawal of the disciplinary proceedings against SFS officers come under the exclusive purview of the Government of Kerala. Further, it has been stated in the reply that the applicant should be eligible as on 1st January, 2006, and available in service on the last possible date for SCM i.e., 31.12.2006, to be considered for the Select List of 2006. The applicant had retired from State Forest Service on 30.04.2006 and was, therefore, not available on due date i.e. 31.12.2006.
6. Rejoinder by the applicant to the reply filed by the respondents reflects as under:
(a) The proceedings with reference to CC No. 30/02 have come to an end by judgement dated 24.10.2008 (A5) exonerating the applicant on merits. In VC.2/2000/SCT referred to by the respondent, no charge sheet has so far been filed in the Court and, therefore, the proceedings cannot be said to be pending as stated in the rules.
Therefore, the reason stated in this paragraph for non-forwarding of the Integrity Certificate is totally unjustified and cannot be sustained.
7. Counsel for the applicant submitted that once the criminal case concluded and the applicant acquitted, there is no question of withholding promotion on the ground that some other case is pending as on date against the applicant. He has cited the following decisions in support of the case of the applicant:
2002(2) ATJ 89 2007(6) SCC 704
8. On the other hand, the Counsel for the State Government contended that charge sheet in another case is pending. (This has been reflected in a reply statement filed later, after the order was reserved, stating that the case in VC 2/2000 was charge sheeted u/s 13(2) r/2 13(1) (d) of PC Act 1988 and Sections 420, 468, 471 and 120 B IPC against the applicant before the Court of Enquiry Commissioner and Special Judge Thiruvananthapuram on 19th June 2006 and the Court had accepted the same.)
9. In the decision of the Apex Court, in Union of India v. Sangram Keshari Nayak,(2007) 6 SCC 704, relied upon by the counsel for the applicant, the Apex Court has held as under:
"The recommendations of the DPC, therefore, can be refused to be given effect to only inter alia when one or the other conditions mentioned in Para 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge-sheet had been issued or, in other words, a disciplinary proceeding was pending. Admittedly, a charge-sheet was issued as against him only on 24-9-1999.
14. Thus, there was no bar in promoting the respondent during the period 14-1-1999 to 27-8-1999. No material was placed before the DPC to take recourse to the sealed cover procedure. In fact, none existed at the material time. Para 2 of the said circular specifically refers to submission of charge- sheet as the cut-off date when a departmental proceeding can be said to have been initiated. Even otherwise such a meaning had been given thereto by this Court in K.V. Jankiraman1 holding: (SCC p.118, para 16)"
"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 should 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."
10. In C.O. Arumugam v. State of T.N., 1991 Supp (2) SCC 199, the Apex Court has held as under:
"The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.
11. In Sulekh Chand and Salek Chand v. Commr. of Police, 1994 Supp (3) SCC 674, the Apex Court has held as under:-
"2. These appeals arise from the order of the Central Administrative Tribunal in OA No. 1218 of 1988 dated 12-121993. The appellant was promoted from the post of ASI to SI but he was confirmed w.e.f. 4-1-1989 though it was stated that his case for promotion had to be considered with effect from 1-10-1982. This claim was resisted by the respondents on the ground that in 1983, he was charged for an offence under Section 5(2) of the Prevention of Corruption Act and he was kept under suspension and he was also communicated of adverse remarks for the period from 7-6-1980 to 31-3-1981 and that he became eligible to be considered for promotion as SI w.e.f. 16-12-1985. Therefore, his case was considered and he was promoted in 1989. Counsel for the respondent was directed to produce the record relating to the DPC proceedings. We have perused the proceedings of DPC which would clearly show that the reasons which prevailed with the DPC were the prosecution under Section 5(2) of Prevention of Corruption Act and the departmental enquiry, against the appellant. It is not in dispute that the proposed departmental enquiry also is related to the selfsame offence under Section 5 (2) of the Prevention of Corruption Act. The judgment acquitting the appellant of the charge under Section 5(2) became final and it clearly indicates that it was on merits.
Therefore, once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the selfsame allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the DPC had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits. The appeals are allowed. No costs."
12. In R. Veerabhadram v. Govt. of A.P., (1999) 9 SCC 43, the considered view of the Apex Court is as under:
"The Court held that once there was an acquittal, he was entitled to reinstatement as if there were no blot on his service. The material on the basis of which his promotion was denied did not now subsist and he should be promoted on the basis of the Departmental Promotion Committees findings. In the present case the appellant was not considered for selection because of the pending criminal proceedings. Since the promotional post is a selection post, there is no basis on which he can now claim that he must be deemed to have been selected and hence he should be granted the promotion. There is no basis on which we can hold that he would have been selected when he was eligible for promotion. The decision, in the above case, has no application here. The only other judgment on which the appellant relied, in this connection is the judgment of the Rajasthan High Court in Mohan Singh Bhati v. State of Rajasthan4 where the Court said that after acquittal, the respondent was entitled to reinstatement and all consequential monetary benefits. We fail to see how this decision will help the appellant in the present case. On the contrary, in the State of Mysore v. C.R. Sheshadri this Court has held that if the rule of promotion is one of sheer seniority, it may well be that promotion is a matter of course. On the other hand, if merit is the rule, promotion is problematical and it would be hazardous to assume that by the efflux of time, the petitioner would have got the promotion. The Court cannot speculate in retrospect whether the petitioner would have been selected on merit and on the strength of such "dubious hypothesis" direct retroactive promotion and back pay."
13. In Delhi Jal Board v. Mahinder Singh, (2000) 7 SCC 210 : the Apex Court has held as under:
"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection." (Emphasis supplied)
14. Again, in Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762, the Apex Court has held as under:
"14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well- established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India v. K.V. Jankiraman. As on 1-1-1986 the only proceedings pending against the respondent were the criminal proceedings which ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-12-1991. In the year 198687 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to to which the respondent was found entitled as on 1-1-1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1-1-1986."
15. Thus, in so far as second charge is concerned, the existence of the same should not come in the way of promotion of the applicant in pursuance of his having been acquitted in the criminal case. And if Veerabhadram's case (supra) is pressed into service, the applicant having been found suitable he could be considered for promotion once the order of acquittal has been passed by the criminal court. But the question is under as to retrospective promotion whether the decisions as cited by the counsel for the applicant as well as others as extracted above support the case of the applicant. All the above decisions related to other services (where the procedure for sealed cover exists) while the applicant's case falls under Indian Forest Service for which specific regulations are available in respect of select list as well as issue of integrity certificate. The select list as per regulation No. 7(4) shall remain in force till 31st day of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or up to 60 days from the date of approval of the Select list by the Commission under sub-regulation (1) or as the case may be finally approved under sub- regulation (2) whichever is later. Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub regulation (1) of regulation 5, the Select Lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto 60days from the date of approval of the Select Lists by the Commission under this regulation, whichever is later.
16. Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as 'unconditional' to the Commission during the period when the Select List was in force, the Commission shall decide the matter within a period of ninety days or before the date of meeting of the next Selection Committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force.
17. From the above it is clear that the regulation is specific that the integrity certificate shall be acted upon only when it is received during the currency of the select list, whose currency has been prescribed. In the instant case, albeit due to the prolonged criminal proceedings, in respect of which the applicant has no control, the proceedings could come to an end only after about fourteen years, whereas the validity of the panel extends for a very limited period as contained in regulation 7(4). As there is no provision analogous to sealed cover procedure, as available in other services, notwithstanding the fact that for no fault of the applicant, the criminal proceedings prolonged for a substantial period, as the integrity certificate could not be given by the State Government during the currency of select list for 1994 or immediately thereafter, the applicant is not entitled to the prayer of consideration for promotion to the cadre of IFS with retrospective effect from 01-01-1994.
18. The applicant is thus, not entitled to the reliefs claimed.
19. Before, however, parting with the case, it is to be observed that the applicant has been found fit for promotion and has been No. 1 in all the years when his case was considered and but for the withholding of integrity certificate, he would have been through in his promotion as early as 1994 itself. But he could not get his promotion as the integrity certificate had to be withheld due to prolonged court proceedings. Over the delay in finalization of the criminal proceedings, there cannot be any hand of the applicant. The apex court has held in the case of Supdt. of Taxes v. Onkarmal Nathmal Trust, (1976) 1 SCC 766, " No act of a court should prejudice a party. That is the first principle of justice.". Keeping this in view, the Central Government may like to consider extension of the same benefits for All India Services also, as in the case other services, which adopt the sealed cover procedure and afford retrospective promotion on notional basis at least.
20. With the above observation, the OA is dismissed.
(Dated, the 3rd April, 2009) K. NOORJEHAN DR. K B S RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER cvr.