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J&K High Court · body

2017 DIGILAW 670 (JK)

Vijay Kumar v. State

2017-08-19

B.S.WALIA

body2017
JUDGMENT : 1. Petitioner qua whom recommendation of the DPC for promotion was kept in sealed cover has challenged the action of the respondents in keeping the recommendation with regard to his promotion under sealed cover procedure merely on account of registration of FIR No. 215/2011 dated 17.12.2011 under sections 307/380 RPC & 3/25 Arms Act and FIR No. 27/2012 dated 05.02.2012 under Sections 153-A/158/447/427/506/120-B RPC. 2. Learned counsel for the petitioner contends that initially, the case of the petitioner was considered for promotion to the post of Inspector in January 2011 but the petitioner was not found fit for promotion. Subsequently, on representation, the matter was again put up before the DPC which on 30.05.2012 found the petitioner fit for promotion retrospectively w.e.f 27.01.2011. However, the recommendations of the DPC were ordered to be kept in a sealed cover on account of registration of aforementioned two FIRs. Learned counsel contends that challan was filed in FIR No. 215/2011 dated 17.12.2011 on 22nd October, 2013 before the Court of the learned Excise Magistrate, Jammu who, in turn committed the same to the Court of the learned Sessions Judge Jammu on the same day, while in FIR No. 27/2012 dated 05.02.2012, no challan has been filed till date. Learned counsel contends that in the circumstances, the petitioner has been illegally denied the promotion by keeping the recommendations of the DPC for promotion of the petitioner to the post of Inspector under SC category under sealed cover. 3. Mr. W.S. Nargal learned Sr. AAG has referred to Appendix XVII i.e. rules regarding sealed cover procedure to be adopted and has referred to paragraph Nos. 1 and 2 of Appendix XVII. The same are reproduced here under: “1. Cases where “Sealed Cover” procedure applicable: 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 shall 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 (substitute vide SRO 239 OF 15.07.1997) 2. 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 (substitute vide SRO 239 OF 15.07.1997) 2. Procedure to be followed by Departmental Promotion Committee: The departmental promotion committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending or contemplated against them or where the investigation is in progress. The assessment of the departmental promotion committee including “Unfit for promotion: and the grading awarded by it will be kept in a sealed cover. The findings of the Committee shall be kept secret and opened only after the termination of suspension order or conclusion of the disciplinary case/criminal prosecution/investigation. Till such time as the proceedings remain in sealed cover, the authority competent to fill the vacancy may fill the vacancy in the higher grade only in an Officiating capacity”. 4. On the basis of the same, learned Sr. AAG has contended that the respondents have rightly adopted the sealed cover procedure. 5. I have considered the submissions made by learned counsel for the parties and am of the considered view that the claim of the petitioner must succeed. 6. Paragraph 1 (iii) of the sealed cover procedure stipulates that sealed cover procedure is applicable in the case of a Government servant in respect of whom prosecution for a criminal charge is pending. Although sealed cover procedure was notified by amending Article 110 (A) of CCR vide SRO 153 dated 7th July, 1995, yet paragraph 1(iii) of the sealed cover procedure rules was substituted vide SRO 239 dated 15.07.1997. 7. Hon'ble Supreme Court in Union of India and ors vs. K.V. Jankiraman, reported as AIR 1991 SC 2010 has laid down that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee and to deny the said benefit, the proceedings must be pending at the relevant time at the stage when charge sheet has already been issued to the employee. In the instant case, as has been noted above, charge sheet in FIR 215/2011 was filed only on 22nd October 2013 while in FIR No. 27/2012 no charge sheet has been filed till date. In the instant case, as has been noted above, charge sheet in FIR 215/2011 was filed only on 22nd October 2013 while in FIR No. 27/2012 no charge sheet has been filed till date. Paragraph No. 6 of K.V. Jankiraman’s case (supra) is reproduced here under: “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. 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. 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. 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: "(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; ( ) ................................................ (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before. “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. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal”. 8. In the light of the position as noted above, it is crystal clear that as on the date of the recommendations of the DPC i.e. 30.05.2012, charge sheet had not been filed in either of the two FIRs and for that matter, in FIR No. 27/2012 it has not been filed till date. Neither charge sheet in criminal trial had been filed nor had any disciplinary proceedings been initiated against the petitioner. Atleast none has been brought to the notice of this Court by the learned Sr. AAG. 9. In the light of the decision of Hon’ble the Supreme Court in K.V. Jankiraman’s case (supra), it is clear that the petitioner was denied promotion despite there being any justifiable cause for withholding the same. In view thereof, the writ petition is allowed. Accordingly, respondents are directed to open the sealed cover proceedings and take action in respect of the recommendations as made by the DPC in accordance with law. In view thereof, the writ petition is allowed. Accordingly, respondents are directed to open the sealed cover proceedings and take action in respect of the recommendations as made by the DPC in accordance with law. At this stage, learned counsel for the petitioner contends that the petitioner is entitled to consequential benefits w.e.f the date of his entitlement. Learned counsel refers to paragraph No. 10 of the decision in K.V. Jankiraman’s case (supra). Paragraph 10 of aforementioned decision is reproduced here under: “In this case, no charge-sheet was served on the respondent/employee when the DPC met to consider the respondent's promotion. Yet, the sealed cover procedure was adopted. The Tribunal has rightly directed the authorities to open .the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits. The Tribunal has further stated in the impugned order that its order would not mean that the disciplinary proceedings instituted against the respondent-employee should not go on. We see no reason to interfere with this order. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs”. 10 Needless to mention, in terms of paragraph 10 of the decision of the Hon'ble Supreme Court in K.V. Jankiraman’s case (supra) wherein the findings of the Tribunal with regard to grant of consequential benefits w.e.f the date of entitlement has been upheld, in case the petitioner herein is found fit for promotion in terms of the recommendations of the DPC, consequential benefits be also granted to the petitioner w.e.f the date of his entitlement. 10. Writ petition is allowed in the aforementioned terms.