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2012 DIGILAW 362 (HP)

INDER RAJ MATHUR v. UNION OF INDIA

2012-06-27

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGMENT : Kurian Joseph, J. 1. Whether the proceeding of a preliminary enquiry has any bearing on promotion, is the issue arising for consideration in the instant case. Before analyzing the legal position, it would be fruitful to have some reference to the factual matrix. The petitioner has been officiating in the post of Chief Engineer since February, 2009. On 5.6.2009, a DPC was held, in which the petitioner was also recommended for promotion. Those proceedings were challenged before the High Court of Gauhati and the same were set aside with a direction to convene a fresh DPC, considering the case of the petitioner therein also, as per judgment dated 26.10.2009 (Annexure-P-3). It took long time to have the subsequent DPC, which was held only on 3.3.2011. That DPC also recommended the petitioner for regular promotion to the post of Chief Engineer. The juniors to the petitioner were consequently promoted as per order dated 29.7.2011 (Annexure-P-7). The petitioner made representations and finding that no fruitful action had been taken, this writ petition was filed on 30th November, 2011, praying for a direction to the respondents to promote the petitioner as Chief Engineer w.e.f. 29.7.2011, the date on which the juniors to the petitioner were promoted as Chief Engineer. It is not in dispute that in case the petitioner is to be promoted, the department has already taken a decision to accord the petitioner his due seniority vis-a-vis the private respondents. Therefore, it is not necessary for us to issue notice to the private respondents, since they are not going to be affected in any manner. 2. It is the contention of Mr. Janesh Mahajan, learned Central Government counsel that on 29.7.2011, the petitioner was under a cloud in view of the pendency of Court of Inquiry (Preliminary Inquiry) wherein it has been reported that the petitioner is also involved in certain irregularities with regard to the awarding of contracts and purchases etc. But, it is admitted fact that either as on the date of DPC or on the date of consequential promotions granted to the juniors on 29.7.2011, no departmental inquiry had been initiated against the petitioner by serving a memorandum of charge. It is also not in dispute that he was not under suspension and still further, there was no criminal case pending against him as on that date. 3. It is also not in dispute that he was not under suspension and still further, there was no criminal case pending against him as on that date. 3. The office memorandum dated 14.9.1992 deals with promotion of Government servant against whom disciplinary/Court proceedings are pending or whose conduct is under investigation. Para-2 thereof reads as follows:- 2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category 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. (iii) Government servants in respect of whom prosecution for criminal charge is pending. 4. Paragraph 7 of the guidelines, as per office memorandum dated 14.9.1992, provides for a situation where after the recommendations made by the DPC, an incumbent is covered by any of the three situations, referred to above. In such a situation, it is made clear that those cases also should be governed by the sealed cover procedure, which is explained in para-2.1 of the office memorandum dated 14.9.1992, which reads as follows:- 2.1 The Departmental Promotion Committee shall assess the suitability of Government servant coming within the purview of the circumstances mentioned above along with 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 proceeding of the DPC need only contain the note. The findings are contained in the attached sealed over'. The authority competent to fill the vacancy should be separately advised to till 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. 5. The findings are contained in the attached sealed over'. The authority competent to fill the vacancy should be separately advised to till 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. 5. In the instant case, either on the date of DPC held on 3-3.2011 or on the date of consequential promotions granted to the juniors to the petitioner on 29.7.2011, the petitioner cannot be said to be under shadow of a cloud in respect of the specified three situations. A person can be said to be under the shadow of a cloud for the purpose of denial of promotion only in case he is covered by any of the eventualities, namely, (i) he is under suspension; or (ii) he has been issued a charge-sheet in respect of disciplinary proceedings; and (iii) where the incumbent is facing prosecution for criminal charge. 6. The procedure has been further clarified in the office memorandum dated 25.10.2004 for dealing with the cases of the persons whose conduct is under investigation or against whom a charge-sheet is pending. That office memorandum was issued in the wake of doubts pertaining to the procedure to be adopted by the DPC in respect of the employees in whose cases vigilance clearance had not been issued. It has been clarified that the vigilance clearance and integrity certificate shall not be an issue for consideration by the DPC: 2. Considerable doubts also persist about the furnishing of the vigilance clearance and integrity certificate to the DPC. It is clarified that the DPC is required to consider the cases of all persons who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, case of an employee in the zone of consideration is covered by any of the three situations, only this fact is 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. 7. 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. 7. It has been further clarified in the office memorandum 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. Referring to the celebrated decision in Jankiraman's case Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 , it has been further clarified that if the complaint is serious, it is always open to the Department to place the employee concerned under suspension so that he would be covered by the first contingency in the 1992 office memorandum, referred to above. Paragraphs of the office memorandum dated 25.10.2004 still further clarifies that the cloud should pertain only to the three contingencies, referred to above in para-2 of the 1992 office memorandum. To quote:- 4. If the conditions indicated in para-2 of DoPT Office Memorandum dated 14th September, 1992, arise only after the DPC has made its recommendations and therefore, the recommendations could not be placed in the sealed cover, para-7 of the said Office Memorandum provides that the recommendations of the DPC shall be deemed to have been placed in the sealed cover and he shall not be promoted until he is exonerated of the charges. Therefore, after the recommendations of DPC have been approved by the competent authority, it is necessary to again seek the status position from the concerned vigilance division before issuing promotion order in respect of any officer included in the approved panel of names to ensure that there is no hindrance in issuing the promotion order in respect of the concerned officer. 8. We find that on 14.12.2007, another office memorandum has been issued (Annexure-P-15), whereby guidelines have been issued regarding vigilance clearance. It is clarified that the vigilance clearance shall be insisted for empanelment, deputation 'for' which clearance is necessary and appointment to sensitive posts and assignments to training programmes. 8. We find that on 14.12.2007, another office memorandum has been issued (Annexure-P-15), whereby guidelines have been issued regarding vigilance clearance. It is clarified that the vigilance clearance shall be insisted for empanelment, deputation 'for' which clearance is necessary and appointment to sensitive posts and assignments to training programmes. It has further been clarified that vigilance clearance shall not be withheld on the only basis of pendency of an inquiry or filing of a complaint unless it is established on the basis of at least a preliminary inquiry or on the basis of information that the department is already in possession that there is prima facie substance to verifiable instances regarding corruption, possession of assets disproportionate to source of income, moral turpitude and violation of Central Civil Services (Conduct) Rules, 1964, It is further clarified that vigilance clearance shall not be withheld if a preliminary inquiry takes more than three months to be completed. Still further, it has been clarified in paragraph 2(c) as follows:- 2(c) Vigilance clearance shall not be withheld unless (i) the officer is under suspension (ii) a charge-sheet has been issued against the office in a disciplinary proceeding and the proceeding is pending (iii) orders for instituting disciplinary proceeding against the officer have been issued by the Disciplinary Authority provided that the charge-sheet is served within three months from the date of passing such order (iv) charge-sheet has been filed in a Court by the Investigating Agency in a criminal case and the case is pending (v) orders for instituting a criminal case against the officer have been issued by the Disciplinary Authority provided that the charge-sheet is served within three months from the date of initiating proceedings (vi) sanction for investigation or prosecution has been granted by the Competent Authority in a case under the PC Act or any other criminal matter (vii) an FIR has been filed or a case registered by the concerned Department against the officer provided that the charge-sheet is served within three months from the date of filing/registering the FIR/case and (viii). The officer is involved in a trap/raid case on charges of corruption and investigation is pending. 9. The officer is involved in a trap/raid case on charges of corruption and investigation is pending. 9. On the factual matrix, petitioner's case is not covered by any of the contingencies, referred to above, as on the date of promotion of the juniors to the petitioner on 29.7.2011, who have been recommended along with the petitioner by the DPC. Admittedly, even the report of preliminary inquiry was submitted only in August, 2011. 10. In this context, we may also refer to the guidance given by the Apex Court in Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 . It has been held in this decision that the pendency of the preliminary investigation shall not be a ground for adopting the sealed cover procedure and that stage shall not be a ground for denial of promotion. To quote:- 6. 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 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. 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. 11. Learned Central Government counsel has invited our intention to the decision of Apex Court in Union of India and Another Vs. R.S. Sharma, (2000) 4 SCC 394 and it is contended that before an incumbent is actually promoted and in case there is existence of any of the three contingencies, referred to in 1992 office memorandum, namely (i) suspension; or (ii) initiation of disciplinary proceedings by serving memorandum of charges; or (iii) pendency of prosecution in criminal charge, the department is well justified in denying the promotion. Paragraphs-11 and 12 are specially referred to and they are extracted below:- 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 DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by 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. 12. The conditions necessary to invoke the said clause are:- (1) Recommendations of DPC should have been made for promoting the Government servant. 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 DPC 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. 12. It has to be seen that it is a case where sealed cover procedure had been adopted on the ground of pendency of a criminal case. The Apex Court also had referred to two other factual aspects in the above decision; (i) that the incumbent had not been promoted even as on the date of consideration of the case by the Apex Court and (ii) at that stage sanction for prosecution had already been accorded and hence, it was held that the sealed cover procedure would apply. To quote:- 13. Two factual aspects are admitted. One is that the 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, Para-7 of the Sealed Cover Procedure would entirely apply and the recommendation made by DPC in respect of the respondent have to remain in the sealed cover "until he is completely exonerated of the charges against him." 13. Still further, in paragraph-16 it has been held by the Apex Court:- 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 Vs. K.V. Jankiraman, (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 Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 was since followed in Union of India Vs. Dr. Sudha Salahan, 1998 Lab. IC 957 and Bank of India and Another Vs. Degala Suryanarayana, (1999) 5 SCC 762 . Learned counsel also submitted that Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 was since followed in Union of India Vs. Dr. Sudha Salahan, 1998 Lab. IC 957 and Bank of India and Another Vs. Degala Suryanarayana, (1999) 5 SCC 762 . The clauses of the second para of the Sealed Cover Procedure considered in Jankiraman 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 Jankiraman. 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 trial for serious offences, and hence the situation is different. (All emphasis supplied) Thus the case has been distinguished with the fact situation in Jankiraman's case (1991 Lab IC 2045). That is not the factual Situation here in the case of the petitioner. No doubt, the CBI has lodged an FIR on 23.2.2012 under the PC Act, but, as rightly pointed out by Shri Ajay Mohan Goel, learned counsel for the petitioner, that the writ petition was filed in November, 2011, no sealed cover procedure was adopted and either as on the date of DPC on 3.3.2011 or when consequential promotions granted to the juniors on 29.7.2011, he was not under the shadow of a cloud as covered by the three contingencies, i.e. suspension, or commencement of disciplinary proceedings or pendency of prosecution for criminal charges. 14. Therefore, we do not find any justification for denying the promotion to the petitioner as on 29.7.2011 when the juniors were promoted. In view of the subsequent developments, in case any other action is to be taken, it is for the respondents to take recourse to the same, in accordance with law, if so warranted. In view of the above position, the writ petition is allowed. There will be a direction to the respondents to promote the petitioner as Chief Engineer as per the recommendations of the DPC, dated 3.3.2011 along with his juniors w.e.f. 29.7.2011. The pending applications, if any, also stands disposed of.