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2010 DIGILAW 1176 (ALL)

Arshad Ullah Khan (Dr. ) v. State of U. P. & Ors.

2010-04-09

DEVENDRA KUMAR ARORA, UMA NATH SINGH

body2010
Devendra Kumar Arora, J.- Heard Sri Raghvendra Singh, learned Senior Advocate, assisted by Sri Anurag Kumar Singh, appearing on behalf of the petitioner and Sri Sanjay Bhasin, learned Addl. Chief Standing Counsel, appearing for the official respondents. 2. By means of the present writ petition, the petitioner is seeking a writ of mandamus for commanding the respondents to open the sealed cover and to declare the result of the Departmental Promotion Committee with respect to the petitioner. The petitioner is also seeking a writ in the nature of certiorari for quashing the impugned order dated 09.2.2010, passed by the respondent no. 2 by which petitioner has been removed from the charge of the post of Chief Veterinary Officer, Mahrajganj (Annexure No. 1 to the writ petition). 3. Sri Raghvendra Singh, learned Senior Advocate, appearing on behalf of the petitioner addressed the Court only with respect to prayer no. 1 and, therefore, this writ petition is being considered and decided only with respect to issue of keeping the recommendations of the Departmental Promotion Committee in sealed cover. 4. Since legal question is involved, as such, with the consent of parties, we proceed to hear and decide this matter finally. 5. The brief facts of the case, as culled out from the pleadings of the writ petition, are that the petitioner was appointed directly on the post of Veterinary Officer in the Department of Animal Husbandry through U. P. Public Service Commission in the year 1984. In August 2007, the petitioner was posted as Veterinary Officer, Veterinary Hospital, Sadar, District Maharajganj. Subsequently, in February, 2008, he, being the senior most, was posted as Chief Veterinary Officer, Maharajganj. as per the provisions of Rule 5(2) of U. P. Veterinary Group-B Service Rules, 1998. An inquiry was initiated against the petitioner in pursuance to Inspection Report submitted by Deputy Director on 23.8.2008. Subsequently, chargesheet was issued to the petitioner on 16.12.2009 to which the petitioner has also filed his reply. 6. as per the provisions of Rule 5(2) of U. P. Veterinary Group-B Service Rules, 1998. An inquiry was initiated against the petitioner in pursuance to Inspection Report submitted by Deputy Director on 23.8.2008. Subsequently, chargesheet was issued to the petitioner on 16.12.2009 to which the petitioner has also filed his reply. 6. The meeting of Departmental Promotion Committee was held on 25.11.2009 for considering the officers of Veterinary Service Group-B for promotion to Class-I post of Deputy Chief Veterinary Officer/Deputy Director/Superintendent and result of the same was declared on 29.1.2010 but name of the petitioner did not find place in the list of candidates promoted to Class-I post whereas his juniors were promoted to Class-I post in pursuance of the recommendations of the aforesaid Departmental Promotion Committee. 7. Submission of learned counsel for the petitioner is that as per Service Rules, criteria of promotion is seniority subject to rejection of unfit. The work and conduct of the petitioner has always been good. Petitioner has not been communicated any adverse entry/remark. The petitioner came to know that result of the Departmental Promotion Committee in respect of petitioner has been kept in sealed cover on account of pendency of inquiry proceedings against the petitioner in pursuance of the Inspection Report dated 23.8.2008 submitted by Deputy Director, Animal Husbandry. Further submission of learned counsel for the petitioner is that on account of pendency of the disciplinary proceedings the recommendations of the Departmental Promotion Committee cannot be kept in sealed cover until and unless chargesheet has been issued prior to the date of Departmental Promotion Committee and admittedly the meeting of Departmental Promotion Committee held on 25.11.2009 and the charge-sheet was issued to the petitioner on 16.12.2009. 8. Learned counsel for the petitioner has placed reliance upon a Government Order dated 28th May, 1997, para 2 of which provides that the recommendations of Departmental Promotion Committee shall be kept in sealed envelope in the following circumstances: (a) the employee has been placed under suspension; (b) if disciplinary proceedings are pending against the employee or proceedings are pending before the Tribunal for which chargesheet has been issued; and (c) if the prosecution is pending against an employee on the basis of criminal charges, meaning thereby chargesheet has been submitted in the Court. 9. 9. On the strength of the aforesaid Government Order, learned counsel for the petitioner submitted that since till the date of Departmental Promotion Committee i.e. 25.11.2009, no charge-sheet was issued to the petitioner and, as such, the recommendations of Departmental Promotion Committee cannot be kept in sealed envelope and it is expedient in the interest of justice that necessary directions be issued to the opposite parties to open the sealed cover containing the recommendations of the Department Promotion Committee with respect to the petitioner and if the petitioner has been recommended, he should be given promotion on next higher post i.e. Class-I post of Deputy Chief Veterinary Officer/Deputy Director/Superintendent. 10. Learned Addl. Chief Standing Counsel has also placed reliance on the Government Order dated 28th May, 1997 and submitted that para 11 of the said Government Order provides that if any fact comes into light and if the same would have been placed before the Selection Committee, the recommendations of the Selection Committee were required to be kept in sealed envelope and in such a situation the concerned employee will not be given promotion till final decision and the recommendations of Departmental Promotion Committee will be treated to be kept in sealed cover. 11. Learned Addl. Chief Standing Counsel also placed reliance on paras 11 & 12 of the judgment of the Hon'ble Apex Court reported in (2000) 4 SCC 394 , Union of India & another vs. R. S. Sharma which read as under: 11.Without conceding to the above position, Shri Mukul Rohtagi, Additional Solicitor General adopted an alternative contention based on para 7 of the Sealed Cover Procedure which reads thus: "Sealed cover applicable to an officer coming under cloud 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 D.P.C are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by D.P.C. 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." 12.The conditions necessary to invoke the said clause are; (1)Recommendations of D.P.C should have been made for promoting the government servant. (2)After such recommendations and before he is actually promoted any one of the circumstances in clause(ii) (sic iii) of the second para (supra) should have arisen. 13. Learned Additional Chief Standing Counsel on the strength of the aforesaid observations submitted that even if a government servant who is recommended for promotion by Departmental Promotion Committee but before he is actually promoted, if any adverse material comes into light before the authorities, recommendations of the Departmental Promotion Committee can be withheld and will be treated as if the same is kept in sealed cover." 14. Learned Counsel for the petitioner, in his reply, placed reliance upon paragraph 14 of the judgment, reported in (1999) 5 SCC 762 Bank of India & another Vs Degala SuryaNarayan which reads 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 Vs. K.V. Janki Raman SCC at pp. 114-115; A.I.R at p. 2013). As on 01.01.1986 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 inquiry proceedings were initiated with the delivery of the charge-sheet on 3.12.1991. In the year 1986-87 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no Departmental Inquiry 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 fact 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. 14. 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 fact 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. 14. We have considered the arguments of learned counsel for the parties and gone through the record. 15. It is admitted position that the Deputy Director, Animal Husbandry submitted a report on 23.8.2008 based on inspection conducted on 02.7.2008 and on the basis of which the inquiry proceedings were initiated against the petitioner and charge-sheet was issued to the petitioner on 16.12.2009. The meeting of the Departmental Promotion Committee was held on 25.11.2009 for considering officers of Veterinary service Group-B for promotion to Class-1 post of Deputy Chief Veterinary Officer/ Deputy Director/ Superintendent and the recommendations of the Departmental Promotion Committee have been kept in sealed cover on account of pendency of inquiry proceedings initiated against the petitioner in pursuance of the Inspection Report dated 23.8.2008 submitted by the Deputy Director, Animal Husbandry. 16. Learned Additional Chief Standing counsel very fairly admitted that the Deputy Director, Animal Husbandry submitted an inspection report on 23.8.2008 on the basis of which inquiry was initiated against the petitioner and chargesheet was issued to the petitioner on 16.12.2009 after the date of Departmental Promotion Committee i.e. 25.11.2009, there was nothing against the petitioner except the pending inquiry proceedings. 17. We have examined the Government Order dated 28.5.1997. The paragraphs 2, 3 and 11 of the said Government Order are relevant and the same are being reproduce as under: 18. From perusal of the aforesaid provisions, it is crystal clear that for resorting to sealed envelop procedure, it is necessary that either the concerned employee is placed under suspension or any disciplinary proceeding is pending before the Tribunal in which charge-sheet has been filed or prosecution is pending against the employee on the basis of the criminal charges, and the charge-sheet for prosecution has been submitted in Court. 19. Para-3 of the Government Order provides that if none of the conditions is available then in each case the matter of promotion will be processed after approval of the recommendations of the Selection Committee by the competent authority. 20. 19. Para-3 of the Government Order provides that if none of the conditions is available then in each case the matter of promotion will be processed after approval of the recommendations of the Selection Committee by the competent authority. 20. Admittedly, in the present case, none of three ingredients are present and the provision of para-11 also does not apply in the present case as it is not the case where recommendations of the Departmental Promotion Committee have not been kept in sealed envelop. The provisions of para-11 provide the situation where recommendations of the Departmental Promotion Committee have been made but before issuance of the promotion order if anything adverse material comes into light and if the same would have been before the Departmental Promotion Committee, then the recommendations of the Departmental Promotion Committee would have required to be kept in sealed cover. The concerned employee is not to be given promotion and the recommendation are treated to be kept in sealed cover till the final decision in the matter. In the present case, recommendations of DPC have already have been kept in sealed envelop and as such provisions of para-11 do not apply in the petitioner's case. 21. Learned counsel for the petitioner placed reliance on the decision reported in 1991 (4) SCC 109 , Union of India and others vs. K.V. Jankiraman and others. Paras-16 and 17 are being reproduced here under:- "16. On the first question, viz, as to when for the purposes of the sealed cover procedure the disciplinary/ criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held 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 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 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 finalize 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. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows. (ATC p. 196, para 39):- "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2)......... (3).............. (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge- sheet filed before the criminal court and not before;" 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. 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, there 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." 22. Learned Counsel for the petitioner also placed reliance on the judgment reported in (2007) 6 SCC 704 , Union of India & others vs. Sangram Keshari Nayak. Paras-11, 12, 13 & 14 of the judgment are being reproduced below:- "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. 12. The terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law. 13. Whereas para-6 of the said circular letter provides for a sealed cover procedure to be adopted by the Departmental Promotion Committee, the same has to be taken recourse to only in the event circumstances mentioned in para-2 thereof arise after the recommendation of the Departmental Promotion Committee. 13. Whereas para-6 of the said circular letter provides for a sealed cover procedure to be adopted by the Departmental Promotion Committee, the same has to be taken recourse to only in the event circumstances mentioned in para-2 thereof arise after the recommendation of the Departmental Promotion Committee. The recommendations of the Departmental Promotion Committee, 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 24.09.1999. 14.. Thus, there was no bar in promoting the respondent during the period 14.01.1999 to 27.08.1999. No material was placed before the Departmental Promotion Committee to take recourse to the sealed cover procedure. In fact, none existed at the material time. Paragraph-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. Jankiraman (supra)." 23. In view of the above discussion, it is admitted position that on the date of Departmental Promotion Committee i.e. 25.11.2009 only inquiry proceedings were pending against the petitioner and the chargesheet was issued on 16.12.2009, the opposite parties in utter violation of the provisions of Government Order dated 28.5.1997, kept the recommendations of Departmental Promotion Committee with respect to the petitioner in sealed cover. As such, present writ petition deserves to be allowed. 24. Writ Petition is allowed. A writ of mandamus is issued to the concerned opposite parties to open the sealed envelop containing the recommendations of the Departmental Promotion Committee with respect to the petitioner and if candidature of the petitioner has been recommended for promotion then the petitioner be given promotion on the basis of the recommendations of the Departmental Promotion Committee. 25. No order as to costs.