Dear friends,
Namaste.
1. The groupism in ourselves like reserved vs non-reserved, direct vs promotee,
inter commissionerate transferee vs non-inter commissionerate transferee, intra
central excise regional disparities vs parity with counterparts etc. having
been observed. No need to say that perhaps every group is fighting for better
career prospects. We have to analyse which option is better or best for our
career prospects. Our aim no-way should be to become merely Asstt. Commissioner
or temporary Asstt. Commissioner and retire at that level. Our aim should
actually be to get promotions at par with our counterparts whether
intra-organisational or intra-departmental or inter-departmental. The best
option is to get parity with the inter-departmental counterparts who are
already enjoying the PB4 levels of Joint Secretary and Addl. Secretary after
getting entry at our level/grade.
2. Utmost unity is being observed in every group. No doubt that there is
nothing better than unity but this unity should be intra-cadre instead of
intra-group. Now, every group seems to be united by TAN, MAN, DHAN. Hefty funds
perhaps are being collected or have been collected for inter-group fightings to
win the battle. We should show this unity and spirit not to become mere Asstt.
Commissioner and retire there but our all-united fight should be getting grades
of Joint Secretary and Addl. Secretary like inter-departmental counterparts,
whether functional or non-functional. No need to say that nothing is better than
functional parity.
3. Friends, we are already fighting legal cases in legal courts in the coomon
interest on the issues like RRs & parity with intra-organisational
counterparts (this will automatically not only remove intra central excise
disparities but also will enable the officers of every group to reach PB4
levels of Addl. Commissioner or Commissioner whether officer belongs to
reserved category or unreserved category or inter commissionerate transferee or
non-inter commissionerate transferee or direct or promote), initial pay
scale in grade pay of 5400/- in PB3 at par with counterparts of CBI etc., time
scale in PB3 instead of PB2, arrears of pay, MACP
(undoing of para 8.1 and offset of time scale with MACP upgradation etc.) etc.
etc. We may have to file some more legal cases in the interest of the cadre.
All of the legal cases require hefty funds as senior advocates are needed to
fight the cases even in CATs and they always charge the hefty fees. For
example, the case of parity with intra-organisational counterparts is on final
hearing in Principal Bench of CAT and we had to pay the fee of senior advocate
even despite of the hearing not reached for last three hearings. At last
occasion, our case was numbered at 31st but, unfortunately, the
cases only upto number 30th were heard. Like it, the cases of
time scale in PB3, MACPS (Principal Bench of CAT), pay scale & arrears
(Cuttack CAT) are on final hearing. We have to show the utmost unity to collect
the funds for these cases, otherwise no need to say that there is every
possibility to lose the cases for the want of funds. So, all are
requested to be all united and collect funds to make payment of hefty fees of
the advocates.
4. An analysis made by one of our officers namely Sh.
S. K. SWAMINATHAN posted at
Service Tax, Audit-II, Mumbai on the promotions in
vigilance cases is also posted below which may be of immense help of the
affected officers.
Love .
RAVI MALIK/SECRETARY GENERAL.
Article by S.K.SWAMINATHAN Superintendent Service Tax-Audit-II Mumbai.
1. DOPT
Circular No. 22034/4/2012-Estt (D-II)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
North Block, New Delhi
Dated the 23rd January, 2014.
OFFICE MEMORANDUM
Subject: Comprehensive review of instructions
pertaining to vigilance clearance for promotion—clarifications - regarding
The undersigned is directed to refer to the
Department of Personnel & Training O.M. of even number dated 2.11.2012 on
'Comprehensive review of instructions pertaining to vigilance clearance for
promotion', wherein, inter alia, it has been laid down in Para 9, as under:
"For the purpose of vigilance clearance for Review
DPC, instructions exist in O.M.No.22011/2/99-Estt(A) dated 21.11.2002 that
review DPC will take into consideration the circumstances obtaining at the time
of original DPC and any subsequent
situation arising thereafter will not stand in the way of vigilance clearance
for review DPC.
However, before the officer is actually promoted it
needs to be ensured that he / she is clear from vigilance angle and the
provision of para 7 of O.M. No.22011/4/ 91-Estt.(A) dated 14.09.1992 are not
attracted".
2. This Department has been receiving references seeking
clarification on grant of promotion in case of review DPC with regard to the
official who is clear from vigilance angle on the date of promotion of the
junior in the original DPC but subsequently attracts the provisions contained
in para 2 of DoPT OM dated 4.09.92.
3. The matter has been examined in consultation with the
Department of Legal affairs and it is
further clarified that, in the case of a review DPC, where a junior has been
promoted on the recommendations of the original DPC, the official would be
considered for promotion if he/she is clear from vigilance angle on the date of
promotion of the junior, even if the
provisions of para 2 of DoPT OM dated 14.9.92 get attracted on the date the
actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A)
dated 21.11.2002.
4. In cases, where the junior is not promoted, it is to be
ensured that the provisions of para 7 of OM dated 14.9.1992 are not attracted
on the date the official is being actually promoted.
(ArunodayGoswami)
Under Secretary to the Govt. of India
Tele: No. 23040339
All Ministries/Departments of the
Government of India
Copy to:-
1. The President's Secretariat, New Delhi.
2. The Vice President's Sectt, New Delhi
3. The Prime Minister's Office, New Delhi
4. The Cabinet Secretariat, New Delhi.
5. The RajyaSabha Secretariat, New Delhi.
6. The LokSabha Secretariat, New Delhi.
7. The Comptroller and Audit General of India, New Delhi.
8. The Secy,Union Public Service Commission, New Delhi.
9. The Staff Selection Commission, New Delhi.
10. All attached offices under the Ministry of Personnel,
Public Grievances and
Pensions.
11. All Officers and Sections in the Department of
Personnel and Training.
12. Establishment(D) Section, DoP&T (10 copies)
13. NIC for updation on the website.
( runoday Under Secretary to the Govt. of India)
Tele: No. 23040339
A) DoPT, Government of India
guidelines:
In the light of the Supreme Court
judgement dated 27.08.1991 in the case of Union of India etc., Vs K V
Jankiraman etc. (AIR 1991 SC 2010), Government of India, Ministry of
Personnel, P.G. & Pensions, DoPT vide Office Memorandum dated 14.09.1992,
in supersession of all the earlier instructions, formulated a policy for sealed
cover procedure for the following categories as contained in Para 2 of the said
OM:
“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
Department Promotional Committee (DPC):-
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.”
Para
7 of the said OM reads “A Government servant, who is recommended for promotion
by the Departmental Promotion Committee (DPC) 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 has 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.”
By
a partial modification of the OM dated 14.09.1992, GOI, DoPT vide its OM dated
21.11.2002 instructed the following:
“The
undersigned is directed to refer to the instructions on sealed cover procedure
as contained in this Department’s OM No. 22011/4/91-Estt. (A) dated 14.09.1992
and to say that a question whether the sealed cover procedure is to be followed
by a Review DPC has been under consideration of this Department in the light of
the decision of the Central Administrative Tribunal in certain cases. The
matter has been considered in consultation with the Ministry of Law and it has
been decided that the sealed cover procedure as contained in the OM dated
14.09.1992 cannot be resorted to by the Review DPC if no departmental
proceedings or criminal prosecution was pending against the Government servant
concerned or he/she was not under suspension at the time of meeting of the
original DPC or before promotion of his junior on the basis of the
recommendations of the original DPC.”
In
the light of Supreme Court judgement dated 01.09.2000 in the case of Delhi Jal
Board VsMahinder Singh {SLP (C) No.11726 of 2000}, the GOI, DoPT vide Para 3
& 4 of OM dated 24.02.2003 clarified Para 7 of OM dated 14.09.1992 as
under:
“3. It is therefore, clarified that
para 7 of the OM dated 14th September, 1992 will not be applicable if by the
time the seal was opened to give effect to the exoneration in the first
enquiry, another departmental inquiry was started by the department against the
Government servant concerned. This means that where the second or subsequent
departmental proceedings were instituted after promotion of the junior to the
Government servant concerned on the basis of the recommendation made by the DPC
which kept the recommendation in respect of the Government servant in sealed
cover, the benefit of the assessment by the first DPC will be admissible to the
Government servant on exoneration in the first inquiry, with effect from the
date his immediate junior was promoted.
4.
It is further clarified that in case the subsequent proceedings (commenced
after the promotion of the junior) results in the imposition of any penalty
before the exoneration in the first proceedings based on which the
recommendations of the DPC were kept in sealed cover and the Government servant
concerned is promoted retrospectively on the basis of exoneration in the first
proceedings, the penalty imposed may be modified and effected with reference to
the promoted post. An indication to this effect may be made in the promotion order
itself so that there is no ambiguity in the matter.”
GOI,
DoPT vide OM No. 22012/1/99-Estt (D) dated 25.10.2004 has further clarified
videpara 2 & 3 as under:
“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.
3.
It is also clarified that there is no requirement of furnishing a separate
integrity certificate to the DPC. In terms of the judgment of the Hon'ble
Supreme Court in the case of Union of India vs. K.V. Janakiraman etc. (AIR 1991
SC 2010), no promotion can be withheld merely on the basis and of suspicion or
doubt or where the matter is under preliminary investigation 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 officer's case for
promotion would automatically be required to be placed in the sealed cover.”
GOI,
DoPT vide OM No. 22034/4/2012-Estt (D) dated 02.11.2012 while upholding various other
provisions of their previous OMs dated 14.09.1992, 21.11.2002, 24.02.2003 &
25.10.2004 have clarified the following vide para 10.
“10.
Opening of sealed cover on conclusion of proceedings, is covered in the
instructions in para 3 of the O.M. dated 14.9.92. In cases where by the time
the Departmental Proceedings are concluded and the officer is fully exonerated
but another charge sheet has been issued, the second charge sheet will not come
in the way of opening of sealed cover and granting promotion notionally from
the date of promotion of the junior and para 7 of O.M. dated 14.9.92 will not
apply as clarified in the O.M. No. 22011/2 / 2002-Estt.(A) dated 24.2.2003.
After the disciplinary proceedings are concluded and penalty is imposed,
vigilance clearance will not be denied. The details of the penalty imposed are
to be conveyed to the DPC.”
GOI,
DoPT vide OM No. 22034/4/2012-Estt (D-II) dated 23.01.2014 has further
clarified as under:
Though
vigilance clearance for review DPC has been conveyed by OM dated 21.11.2002 but
they are receiving queries with regard to official who is clear from vigilance
angle on the date of promotion of the junior in the original DPC but
subsequently attracts the provisions contained in para 2 of DoPT OM dated
14.09.1992 and therefore clarified vide
para 3 of the above OM dated 23.01.2014 as under:
“3.
The matter has been examined in consultation with the Department of Legal Affairs
and it is further clarified that, in the case of a review DPC, where a junior
has been promoted on the recommendations of the original DPC, the official
would be considered for promotion if he/she is clear from vigilance angle on
the date of promotion of the junior, even if the provisions of para 2 of DoPT
OM dated 14.9.92 get attracted on the date the actual promotion is considered,
as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002.”
Supreme Court Judgements:
The
Supreme Court judgement dated 27.04.2007 in the case of Union of India &
others VsSangramKeshariNayak the Hon’ble bench of Justice S B Sinha&
Justice MarkandeyKatju cited the judgement of Supreme Court in the case of K V
Janakiraman (Supra) as under:
“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."
Smt.
ShubLata Paul v/s. Secretary, Department of Agriculture &ors., pronounced
on 28 November 2013- Central Administrative Tribunal Delhi, Principal Bench,
New Delhi OA-1885/2012 while passing order cited the OM dated 25.10.2014 and
ruled in favour of Applicant:
Court held that ‘’the vigilance clearance for promotion may be denied only in
the following three circumstances; Govt. servants under suspension; Govt.
servants in respect of whom a charge sheet has been issued and disciplinary
proceedings are pending; and Govt. servants in respect of whom prosecution for
a criminal charge is pending. Withholding of vigilance clearance to a Govt.
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. According to this OM, vigilance
clearance can be denied only when one of the three circumstances mentioned in
the aforesaid OM is met. Adoption of sealed cover procedure before issue of
charge sheet is invalid and therefore results in wrongful denial of promotion
to an employee.” (Annexure 6)
Similar
judgments/ comments have been made by honorable courts in following cases also.
1. Union of India v/s. Anil Kumar Sarkar
on 15.03.2013 –-
Supreme Court in the Civil Appeal No. 2537 of 2013 rejected the appeal of Union
of India argued by Mr. Mohan Jain Additional Solicitor General and upheld the
Judgement of High Court bench of Gauhatithat
the charge sheet was served on the respondent after the relevant date of for
consideration for promotion.
2. Union
of India & Others v/s. SangramKesariNayak on 27.04.2007- Supreme Court
in Civil Appeal 3691 of 2005 dismissed an appeal of Union of India on the
ground that no charge sheet was issued and served before the date of promotion
process and upheld the judgement of Tribunal as well as Orissa High Court.
Contemplation
for future case and vigilance clearance cannot be denied after the charge sheet issued
prior to DPC recommendation has resulted into minor penalty. Thus sealed cover
should have been opened on 13.04.2013 i.e., the date of minor penalty imposed
which does not debar him from promotion. Court pronouncements and Government
policy direction are clear in this regard and cited above. Moreover, CVC
clearance is required only where vigilance angel exists i.e. after DA has found
actionable lapse and not otherwise even if the officer is of the rank of scale
V & above.
In another case an officer of
Scale IV was promoted to Scale V w.e.f. 01.09.2013 in the promotion process for
2013 – 14 held in 29th April 2013. Till the date of release of his promotion on
01.09.2013 none of the three parameters for sealed cover existed. He was served
a minor non-vigilance charge sheet on 24.09.2013 and therefore his promotion
should have been released w.e.f. 01.09.2013 as no charge sheet was pending
before this date. Meanwhile, DA has already awarded minor penalty punishment on
11.11.2013 which does not debar him from promotion.
The
case cited above does not come under any guidelines of the Government as no
charge sheet was issued even prior to date of release of promotion. Even after
the punishment given on 11.11.2013, his promotion has not been released.
Keeping such cases pending on the basis of any internal rule not in conformity
with Government guidelines / policy is not sustainable.
All relevant Government
guidelines applicable to Central Government employees and relevant Supreme
Court pronouncements for ready reference have been quoted.
Yet in another instance promotion
of an officer has not been released w.e.f. 01.10.2013. Till the date of release
of his promotion none of the three parameters for sealed cover existed. Though
DA has issued a letter to him finding no actionable lapse on his part in a
subsequently contemplated case, yet ostensibly for want of vigilance clearance
his promotion has not been released.
Vigilance
clearance cannot be denied even where in a ‘subsequent contemplated case’ the
DA has informed no actionable lapse exists against him. In this connection we
refer to CVC manual which stipulates that the case of offices coming under
their jurisdiction is to be referred to them only where vigilance overtone
exists. Vigilance overtone can be there only when there is actionable lapse.
There are similar such cases at
various Scales for promotion to next higher scale but promotion has not been
released without fulfilling any of the government guidelines or court
pronouncements. In the light of the above, not releasing the promotions in
deserving cases which are in conformity with Govt. guidelines and court
verdicts only creates dissatisfaction and demoralization. This ultimately may
force officers to get justice from court. This method if adopted only
undermines the administrative efficiency.
A beautiful judgement passed byCentral Administrative Tribunal -
Delhi
Central Administrative Tribunal - Delhi
NirajSrivastavavs Union Of India Through on 15 January,
2014
Central Administrative Tribunal Principal Bench: New Delhi
OA No.4094/2013
MA No. 08/2014
Reserved on: 08.01.2014
Pronounced on: 15.01.2014
Honble Mr. Justice Syed RafatAlam, Chairman
Honble Dr. B. K. Sinha, Member (A)
NirajSrivastava s/o late M.P. Srivastava
R/o F-202, Lane W5A,
Western Avenue, Sainik Farms,
New Delhi 100 062. Applicant
(By Advocates: Ms. Jyoti Singh, Sr. Advocate assisted by
Sh. C. Bheemanna, Sh. Padma Kumar S. and Ms. TinuBajwa)
Versus
1. Union of India through
Cabinet Secretary,
Cabinet Secretariat (Main),
RashtrapatiBhawan,
New Delhi.
2. Secretary (R)
Room No.7, Bikaner House (Annexe)
Shahjahan Road,
New Delhi. Respondents
(By Advocate: Shri T.C. Gupta)
O R D E R
By Dr. B.K. Sinha, Member (A):
The short question that we are called upon to decide in the
instant Original Application is that whether sealed cover procedurecan be
resorted to when no charge sheet has been approved and only initiation of
departmental proceedings against a minor penalty charge has been sanctioned by
the competent authority.
2. The case of the applicant, in brief, is that he has been
working as Additional Secretary in the Cabinet Secretariat since 27.08.2011 and
is due for retirement in February, 2014. On 09.08.2012, the applicant was
called upon to submit explanation with respect to the alleged decision taken by
him in April, 2004 while working as Joint Secretary in the same Department to
which the applicant submitted his reply on 24.08.2012. However, as the matter
was very old, the memory had faded and the applicant, therefore, submitted a
more detailed reply on 26/28.03.2013. On 14.05.2013, the applicant submitted a
comprehensive reply to the respondents after having offered an oral explanation
in course of personal audience granted to him. The grievance of the applicant
is that on 25.06.2013 a DPC meeting was held to consider his case for promotion
to the rank of Special Secretary and its recommendation in so as the applicant
is concerned had been placed under sealed cover. On 18.09.2013, three of the
applicants juniors were promoted to the grade of Special Secretary in
supersession of the applicant. On 19.09.2013, the applicant made a detailed
representation to the respondents without having evoked any response. Aggrieved,
the applicant approached this Tribunal by filing OA No.3452/2013, which was
disposed of with a direction to the respondents to consider the representation
of the applicant vide means of a reasoned and speaking order. However, when no
decision on the representation was forthcoming, the applicant, in view of his
impending retirement in February, 2014, has instituted the instant OA on
20.11.2013.
3. The respondents have filed a counter affidavit wherein,
as a measure of rebuttal to the contents of para no.6, it has been stated that
the applicants representation dated 19.09.2013 assailing the decision of the
DPC to place its recommendation in sealed cover was duly examined and
appropriately disposed of vide order dated 25.11.2013. Accordingly, the
applicant has filed MA No.08/2014 seeking amendment in the OA submitting that
consequent to the issue of the Dasti Notice in respect of the instant OA, the
respondents have purportedly disposed of his representation vide a
non-speaking, cryptic order dated 25.11.2013 contrary to the directions of this
Tribunal. The applicant has submitted that the decision to this OA primarily
hinges on grounds of law, the facts being not in dispute serve to a minor
extent.
4. The applicant has adopted the following grounds in
support of his claim:-
The disposal of the applicants representation vide order
dated 25.11.2013 is contrary to the direction of this Tribunal being
non-speaking and cryptic one and is against the rules of natural justice as the
assailed order in question seeks to abridge the rights of the applicant. It was
further submitted by Mrs. Jyoti Singh, the learned senior counsel of the
applicant, that the rules and oath of secrecy governing the respondent
organization prevents the applicant from bringing the reply received from the
respondent organization on record here.
The second ground relating to point of fact, which has been
disputed by the applicant is that while the learned counsel for the respondents
made oral submissions that the charge sheet had been approved on 04.04.2013
which, as per the applicant, had been approved on 07.10.2013 and had been
served upon the applicant on 18.10.2013. Thus, the approval and submission of
the charge sheet have both taken place well after the date of DPC held on
25.06.2013 and on the date the three juniors of the applicant had been promoted
over the applicant vide order dated 18.09.2013.
5. On the point of law, the learned counsel for the
applicant heavily relied upon the decisions of the Honble Supreme Court in the
case of Union of India and Others versus K.V. Jankiraman [1991 (4) SCC 109]
wherein it has been clearly spelt out that the sealed cover procedure can only
be resorted to under three given circumstances that being (i) when a charge
sheet has been served upon the charged employee; (ii) when a criminal case has
been instituted against the errant employee and a charge sheet has been
submitted; and/or (iii) when the employee has been placed under suspension; and
in none others. The applicant has additionally relied upon a recent decision in
the case of Union of India and Others versus Anil Kumar Sarkar [SLP
No.2537/2013 decided on 15.03.2013] wherein the Honble Supreme Court has
examined and reaffirmed the decision in the case of Union of India and Others
versus K.V. Jankiraman (supra). The applicant has further relied upon the
decisions of Honble High Court of Delhi in the cases of Union of India and
Others versus Satyendra Kumar Singh [WP(C) No.7030/2013 decided on 11.11.2013]
and Union of India and Another versus Suresh Chandra [WP(C) No.335/2012 decided
on 03.09.2013]. Additionally, the applicant has further relied upon the
DOP&T OM dated 02.11.2012 which has made a comprehensive review of the
instructions pertaining to vigilance clearance for promotion and has, inter alia,
reiterated the OM dated 14.09.1992 issued on the basis of the procedures laid
down by the Honble Supreme Court in the case of Union of India and others
versus K.V. Jankiraman (supra). The applicant has further relied upon a
decision of the Honble Supreme Court in the matter of Union of India and Others
versus SangramKeshariNayak [2007 (6) SCC 704).
6. The respondents have filed a counter affidavit wherein
they have submitted that the Prime Minister, being the disciplinary authority,
had approved the initiation of departmental proceedings against the applicant
on 04.04.2013 well before the date of the meeting of the DPC held on
25.06.2013. Therefore, in view of the pending charges against the applicant,
which are grave in nature, the DPC had rightly resorted to sealed cover
procedure against the applicant. It is not that the DPC had not considered the
case of the applicant. The DPC had indeed considered the case of the applicant
but deemed it appropriate to place its recommendation in sealed cover till the
clearance of the charges. The respondents have also submitted a reply to the MA
filed by the applicant reiterating the same facts.
7. The learned counsel for the respondents has submitted
that the charges against the applicant related to matters of integrity and were
by all means grave in nature. Therefore, the DPC had rightly placed the
recommendation in respect of the applicant under sealed cover. He further
submitted that the cases relied upon by the applicant would not be applicable
to the facts of the instant case as the Prime Minister had already approved the
initiation of departmental proceedings well before the date of DPC. The learned
counsel for the respondents has, therefore, vehemently argued that the instant
OA is misconceived, misplaced and devoid of merit and deserves to be dismissed.
He also submitted a sealed envelope containing replies of the respondent
organization in respect of the applicants queries, which the Tribunal alone
should peruse on account of the secret nature of the respondent organization.
8. It is a well admitted fact that what the Prime Minister
had approved on 04.04.2013 was a decision to initiate departmental proceedings
against the applicant. It appears from the sealed envelope submitted by the
respondents counsel that promotions of the regular officers of R&AW are
considered simultaneously when promotions of IPS officers of the same batch
serving in the Intelligence Bureau are considered. It was on this account that
the DPC for promotion of Additional Secretaries was initially held on
18.12.2012 but had been rejected on account of the fact that the IPS officers
of 1978 batch of the Intelligence Bureau were yet to be considered for
promotion to the Apex scale of Rs.80,000/- at that point of time. Subsequently,
on 10.04.2013, the Cabinet Secretariat conveyed the directions of the Prime
Minister for initiation of departmental enquiry for misconduct under CCS (CCA)
Rules, 1965 against the applicant for imposing a minor penalty. A draft charge
sheet against the applicant was submitted on 14.05.2013 to the Cabinet
Secretariat, which conveyed its approval vide ID Note dated 11.10.2013. The
charge sheet was finally issued to the applicant on 18.10.2013. The Note
further refers to OM of DOP&T dated 14.09.1992 that sealed cover procedure
is to be adopted in case of government servant in the zone of consideration in
whose respect a charge sheet has been issued and disciplinary proceedings are
pending. It was in this light that the DPC held on 25.06.2013 decided to place
its recommendation qua the applicant under sealed cover while other three
junior officers, who were not similarly placed incumbent, were promoted. The
proceedings of the DPC indicate that minor penalty proceeding had been approved
by the competent authority against the applicant and it was on this account the
DPC decided to keep its recommendation in respect of the applicant in a sealed
cover.
9. The imputation of charges have also been enclosed which
indicate that the applicant had served as Joint Secretary (Personnel) during the
relevant period (December 2003 May 2004)
when the decision of making deviations in the approved building plan of the
Project at Envelop 5-A, CGO Complex, New Delhi were made. The applicant was
in-charge of the Sections processing all the approvals on the files and dealing
with communication thereof to the approving and implementing authorities. The
applicant had also served as Chairman of the Monitoring Committee. Though the
applicant in his official capacity was fully aware of the background of the Project,
yet he had consented to the change in the building plan whereby three blocks
were constructed in place of two but there were alterations in the basement. It
is relevant to extract the concerned paragraph from this chargesheet, which
reads as under:-
That ShriNirajSrivastava did not bring out the facts of
deviation to the knowledge of Secretary .in writing to obtain his orders, on
file, though various notes recorded do indicate that the deviations were
possible made at his directions. JS (Pers.) ShriNirajSrivastava was fullyaware
that Secretary (R) was not the Competent Authority to make any change in the
building plan approved by CNE/CFA. Still, rather than bringing to the notice of
his superior officers the need to approach CNE/CFA, in case some modifications
were contemplated, or cautioning them about the illegality in not doing so, he
allowed the irregular/unauthorized decision to be conveyed to CPWD. By
recording minutes without obtaining formal approval of the then Secretary (R),
ShriNirajSrivastava, not only allowed the deviations to be made by possibly
tried to shield the then Secretary (R) from the irregularities committee.It
also appears from the order dated 08.05.2013 that it was the then Secretary (R)
who was guilty of grave misconduct being a party to the deviations made in the
design and scope of the building as approved by the CNE/CFA without obtaining
approval of the competent authority to do so. However, as the then Secretary
(R) retired on superannuation on 31.01.2005, no enquiry could have been
initiated against him under the provisions of CCS (CCA) Rules, 1965 and further
Rule 9(2)(b) of CCS (Pension) Rules, 1972 as the event had taken place more
than four years ago. Therefore, it was decided not to initiate a departmental
enquiry against the then Secretary (R) instead, as it appears, proceedings had
been initiated against the applicant. It also transpired during the oral
submissions that the then Secretary (R) was separated from the Joint Secretary
by a Special Secretary against whom no action is under evidence.
10. We also take note of the statement of the learned
counsel for the respondents that the charges related to financial irregularity.
However, that is not justified by the above facts. Moreover, had it been so,
the respondents would have proceeded against the applicant under Rule 14 of the
CCS (CCA) Rules, 1965 for a major penalty and not for a minor penalty as the
case is.
11. We now take up the legal issue as it has been
formulated in the opening paragraph of this order. We well recognize that the
judgment in Union of India and Others versus K.V. Jankiraman (supra) remains
one of the land mark decisions in service jurisprudence and is often referred
to as the mother of such decisions. Thereafter, this decision has been
re-examined and re-affirmed in a series of decisions, the one of which, the
applicant has sought to place his reliance, is that of Union of India and
Others versus Anil Kumar Sarkar (supra) wherein the respondent had joined the
Northern Railway as a Junior Clerk and had worked his way up to Senior AFA/T-1
in the office of Financial Adviser and Chief Accounts Officer of Northern
Frontier (NF) Railway at Maligaon. A DPC was convened by the UPSC on 26.02.2002
and 27.02.2002 to consider the promotion of eligible Group B officers of the
Accounts Department for their substantive promotion to Group A of the Indian
Railway Accounts Service (IRAS) against the vacancies for various Zonal
Railways/Production Units. The case of the applicant was considered for the
year 2001-02 and his name was accordingly placed in the extended select panel.
However, it was alleged by the appellants that during the year 1994-95, the
respondent had committed gross misconduct in checking and clearing the bills
for which four memoranda of charges were issued to him, out of which two had
been issued on 13.08.2003, the third on 01.09.2003 and the fourth on 05.11.2003
on the basis of which, four separate departmental proceedings had been
initiated against the respondent at three different places. In the year 2004,
the CBI lodged 11 FIRs against the respondent based upon these similar charges.
By an Office Order dated 21.04.2003, the batch mates of the respondent were
promoted giving rise to an OA before the Guwahat Bench of this Tribunal for a
direction to promote him to Group A (Jr. Scale) of IRAS w.e.f. 05.03.2002. The
afore OA was dismissed by the Tribunal while the Honble High Court of Guwahati
had set aside the Tribunals order. The Honble Supreme Court, while referring to
the DOP&T OM dated 14.09.1992 and the case of Union of India and Others
versus K.V. Jankiraman (supra), had agreed with the decision of the High Court
of Guwahati and dismissed the appeal. For the sake of clarity, the relevant
paragraph is extracted herein below:-
13. It is not in dispute that an identical issue was
considered by this Court in Union
of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109. The common questions involved in all
those matters were:
(1) What is the date from which it can be said that
disciplinary/criminal proceedings are pending against an employee? (2) What is
the course to be adopted when the employee is held guilty in such proceedings
if the guilt merits punishment other than that of dismissal? and (3) To what
benefits an employee who is completely or partially exonerated is entitled to
and from which date?. Among the three questions, we are concerned about
question No.1. As per the rules applicable, the sealed cover procedureis
adopted when an employee is due for promotion, increment etc. but
disciplinary/criminal proceedings are pending against him at the relevant time
and hence, the findings of his entitlement to the benefit are kept in a sealed
cover to be opened after the proceedings in question are over. Inasmuch as we
are concerned about the first question, the dictum laid down by this Court
relating to the said issue is as follows:-
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 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.
In para 17, this Court further held:
17. 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. After finding so, in the light of the
fact that no charge sheet was served on the respondent-employee when the DPC
met to consider his promotion, yet the sealed cover procedure was adopted. In
such circumstances, this Court held that 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 of 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..We see no reason to interfere with this order.
The appeal, therefore, stands dismissed.The principles laid down with reference
to similar office memorandum are applicable to the case on hand and the
contrary argument raised by the appellant-Union of India is liable to be
rejected.The same very order also cites the subsequent order of the Honble
Supreme Court in Coal India
Limited & Others vs. Saroj Kumar Mishra [AIR 2007 SC 1706] and Chairman-cum-Managing
Director, Coal India Limited and Others vs. AnantaSaha and Others, [(2011) 5 SCC 142] to hold that disciplinary proceeding
commences when chargesheet is issued to the delinquent employee.
12. We find that the order of the Honble Supreme Court in
Union of India and Others versus K.V. Jankiraman (supra) has been further
interpreted by the Honble High Court of Delhi in the case of Union of India and
Others versus Satyendra Kumar Singh (supra) wherein the DPC met in January,
2012 while the juniors had been promoted in 2012. There was no justification
for the petitioners to deny promotion to the respondent as none of three mandatory
conditions i.e. submission of charge memo in departmental proceedings;
submission of chargesheet in criminal case and/or suspension of the delinquent
government employee had been fulfilled. A similar view has been expressed in
yet another decision of the Honble High Court of Delhi in Union of India and
Another versus Suresh Chandra (supra). A reference has also been made to the OM
dated 02.11.2012 which provides for a comprehensive review of instructions
pertaining to vigilance clearance for promotion. This OM, after stating in the
opening paragraph that as per the decision in Union of India and Others versus
K.V. Jankiraman (supra) vigilance clearance could be denied only under the
conditions of suspension, submission of a charge sheet in disciplinary
proceedings; and prosecution in a criminal case, goes ahead to review the
latter circular and hold as under:-
5. The O.M. No.22012/1/99-Estt.(D) dated 25th October, 2004
further provides that a DPC shall assess the suitability of the Government
servant coming within the purview of the circumstances mentioned in para 2 of
the Office Memorandum No. 22011/4/91-Est.(A) dated 14.09.1992, alongwith other
eligible candidates, without taking into consideration the disciplinary case/
criminal prosecution pending. 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, 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.
6. 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.It further states that as per Rule 9(6)(b)(i) of CCS
(Pension) Rules, 1972, judicial proceedings shall be deemed to be instituted on
the date on which the Magistrate takes cognizance of the complaint of a police
officer and reiterates that vigilance clearance cannot be denied on the ground
of pending disciplinary/criminal court case against the Government servant
unless three conditions in para 2 of DOP&T OM dated 14.09.1992 are
satisfied.
13. Having discussed all the facts of the case in detail,
though not the legality of the charges at this stage, and also various
pronouncements of the Honble superior courts, we come to the one and only
inescapable conclusion that this case is squarely covered by the decision of
Honble Supreme Court in Union of India and Others versus K.V. Jankiraman
(supra), Union of India and Others versus Anil Kumar Sarkar (supra) and other
decisions emanating from the same.
14. We are compelled to take a note of the fact that much
stress has been laid in the counter affidavit filed by the respondents that the
Prime Minister being the Disciplinary Authority had approved initiation of
departmental enquiry against the applicant as early as 04.04.2013 well before
the date of the meeting of the DPC on 25.06.2013 and the sealed cover procedure
adopted by the DPC in respect of the applicant was correct. It appears that in
the verification clause of the counter affidavit it has not been stated as to
whether the averments made in para nos. 4.9 and 4.13 are based on record,
instead a vague statement has been made saying the same is true and correct to
the best of deponents knowledge. On a close look, the averment to the afore
effect is falsified by the Memorandum dated 25.11.2013 rejecting the
representation dated 19.09.2013 submitted by the applicant wherein it has been
clearly mentioned in para no.3 It is also noted that Prime Minister, as
Disciplinary Authority has approved the charge sheet on 07.10.2013 and the
charge sheet has also been served upon ShriNirajSrivastava on 18.10.2013. When
this was brought to the notice of the learned counsel for the respondents, he
materially admitted on behalf of the respondents that on the date the DPC met
and/or the junior officers were promoted and placed the recommendation qua the
applicant in sealed cover, none of the three mandatory conditions mentioned in
para 2 of OM dated 14.09.1992 were getting satisfied. Therefore, the act of the
respondents in placing the case of the applicant in sealed cover is repugnant
to the decision of the Honble Supreme Court Union of India and Others versus
K.V. Jankiraman (supra) and also contravenes the Office Memoranda dated
14.09.1992 and 02.11.2002. The submissions of the respondents that the case
relates to integrity have also been taken care of and do not sustain.
15. In totality of facts and circumstances of the case, we
dispose of the instant Original Application with the following directions:-
The respondents are directed to open the recommendations
placed in the sealed cover by the DPC held on 25.06.2013 and act accordingly
thereafter;
Considering the fact that the applicant is to retire
shortly, this exercise is to be positively completed within a period of
fortnight from the date of receipt of a certified copy of this order.
The parties are left to bear their own costs.
(Dr. B.K. Sinha) (Syed RafatAlam)
Member (A) Chairman
/naresh/
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Supreme Court of India
Union Of India &Orsvs Anil Kumar Sarkar on 15 March,
2013
Author: P Sathasivam
Bench: P. Sathasivam, Jagdish Singh Khehar
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 2537 OF 2013
(Arising out of S.L.P. (C) No.1933 of 2011)
The Union of India &Ors. .... Appellant(s)
Versus
Anil Kumar Sarkar .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Delay condoned.
2) Leave granted.
3) This appeal is directed against the judgment and order dated 27.04.2010 passed by the Gauhati High Court at Gauhati in Writ Petition (C) No. 744 of 2010 whereby the Division Bench of the High Court allowed the writ petition filed by the respondent herein and set aside the order dated 21.08.2009 passed by the Central Administrative Tribunal, Gauhati Bench, Gauhati in O.A. No. 251 of 2007.
4) Brief facts
a) Anil KumarSarkar, the respondent herein, joined the Northern Railways as a Junior Clerk on 04.11.1977. He was promoted to various posts and while he was working as senior AFA/T-1 in the office of the Financial Adviser and Chief Accounts Officer of Northeast Frontier (N.F.) Railway at Maligaon, a Departmental Promotion Committee (DPC) was convened by the Union Public Service Commission (UPSC) on 26.02.2002 and 27.02.2002 to consider eligible Group ‘B’ officers of the Accounts Department for their substantive promotion to Group ‘A’ (Jr. Scale) of Indian Railways Accounts Service (IRAS) against the vacancies for various Zonal Railways/Production Units.
In the said DPC, the respondent’s name was also considered against the vacancies in N.F. Railway for the year 2001-2002 and accordingly, his name was placed in the extended select panel.
b) It was alleged by the appellants herein that during the year
1994-95, while the respondent was working as Assistant Accounts Officer in the
Central Stores Accounts (Bills) in the
office of the Financial Adviser and Chief Accounts Officer (Open Line), N.F.
Railway, Maligaon, he committed gross misconduct in the matter of checking and
passing the bills of various firms involved in manufacturing and supplying of
cast iron sleeper plates to N.F. Railways.
For the said acts, four memorandum of charges were issued to the respondent, out of
which two were issued on 13.08.2003 and others on 01.09.2003 and 05.11.2003.
On the basis of the said memorandums, four
departmental proceedings were initiated against the respondent at three
different places, i.e., Delhi, Kolkata and Gauhati, enquiries were completed
and show cause notices were served.
c) Based on the similar charges, in the year 2004,
the CBI lodged 11 FIRs against the respondent herein on different dates under Section 120B/420 of the Indian Penal Code, 1860 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and accordingly,
cases were registered against him. Subsequently, 11 cases were amalgamated into
3 cases being numbered as Special Case Nos. 59/04, 60/04 and 62/04.
According to the appellants, on the basis of these charges,
the respondent was not promoted to Group ‘A’ (Jr. Scale).
d) By office order dated 21.04.2003, the batch mates of the
respondent were promoted.
Being aggrieved, the respondent herein filed
several representations to the Department for consideration of his case for
promotion which were duly rejected. Challenging the non-consideration of his
case for promotion, the respondent filed O.A. No. 251 of 2007 before the
Central Administrative Tribunal, Gauhati Bench for a direction to the
appellants herein to promote him to Group ‘A’ (Jr. Scale) of IRAS w.e.f.
05.03.2002 in terms of the recommendations of the DPC held on 26.02.2002 and
27.02.2002 wherein his name was figured in the extended panel list. Vide order
dated 21.08.2009, the Tribunal
dismissed his application.
e) Challenging the order of the Tribunal, the respondent
herein filed a petition being W.P.(C) No. 744 of 2010 before the Gauhati High
Court. The High Court, by impugned order dated 27.04.2010, allowed the petition
and set aside the order passed by the Tribunal and directed the appellants
herein to issue appropriate order in favour of the respondent herein for
promotion with all consequential benefits.
f) Challenging the said order, the Union of India has filed
this appeal by way of special leave.
5) Heard Mr. Mohan Jain, learned Additional Solicitor
General for the Union of India and Mr. Rakesh Kumar Singh, learned counsel for
the respondent.
Contentions:
6) Mr. Mohan Jain, learned ASG, after taking us through the
Office Memorandum dated 14.09.1992 issued by the Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and Training, submitted that
paragraph 2 of the said memorandum has to be considered along with paragraph 7
of the same. According to him, the High Court is not justified in considering
paragraph 2 of the memorandum alone. He further submitted that at the relevant
time, 4 charge sheets were issued to the respondent and enquiries were
completed and notices to show cause had already been served upon the
respondent. On the other hand, Mr. Rakesh Kumar Singh, learned counsel
for the respondent submitted that as on the date i.e. 21.04.2003, when his
juniors were promoted, neither the respondent was under suspension nor any charge sheet was served upon him and he was not facing any criminal prosecution, hence, there was no impediment in promoting him.
7) We have carefully considered the rival submissions and
all the relevant materials including the decision of the Tribunal and the
impugned order of the High Court.
Discussion:
8) There is no dispute as to the fact that the Office
Memorandum No. 22011/4/91-Estt(A), Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of Personnel & Training, New
Delhi dated 14.09.1992 is applicable to the case on hand. In fact, learned ASG appearing
for the appellants and learned counsel for the respondent heavily relied on the
said memorandum. The relevant paragraphs for our present purpose are 2 and 7
which are reproduced hereunder:
“No. 22011/4/91-Estt(A) Government of India Ministry of
Personnel, Public Grievances and Pensions Department of Personnel &
Training North Block, New Delhi-110001 Dated: 14.09.1992 OFFICE MEMORANDUM
Subject : Promotion of Government servants against whom disciplinary/court
proceedings are pending or whose conduct is under investigation. Procedure and
guidelines to be allowed.
|Board’s L/No. E(D&A) |In supersession of all
instructions | |88RG6-21 dt. 21.9.88 & |contained in Bd’s letters referred
to in | |2.7.90 |the margin on the above subject, the | | |procedure and
guidelines laid down below | | |shall be followed in the matter of | |
|promotion from Group ‘B’ to Group ‘A’ and| | |within Group ‘A’ of Railway
Officers | | |against whom disciplinary/Court | | |proceedings are pending. |
|Cases of Govt. to whom |2. At the time of consideration of the | |sealed cover
procedure |cases of Govt. servants for empanelment | |will be applicable.
|details of Govt. 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;| | |(iii) Government servants in respect of | | |whom prosecution for
a criminal charge is| | |pending. | | |………..……………………………………………… | |Sealed cover
procedure |………………………………………………………. | |applicable to officers
|……………………………………………………… | |coming under |7.A Govt. servant, who is recommended |
|cloud-holding of DPC but|for promotion by the Departmental | |before
promotion. |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 the conclusion of |
| |disciplinary case/criminal proceedings | | |and the provisions contained in
this | | |letter will be applicable in his case | | |also.” |
9) It is not in dispute that the respondent had joined the
Northern Railways as a Junior Clerk on 04.11.1977, and got promoted time and
again. While he was working as a Group ‘B’ Officer, his case was taken up for
promotion to Group ‘A’ (Junior Scale) of the Indian Railways Accounts Service
(IRAS). It is also not in dispute that in the meetings of the DPC conducted on
26.02.2002 and 27.02.2002, the respondent’s name was considered and he was
placed in the extended select panel. It
is further seen that up to 21.04.2003, the date on which the respondent’s batch
mates were promoted to IRAS, neither any criminal proceedings was initiated
against him nor any departmental enquiry was initiated, nor any charge sheet
was served upon him and nor he was placed under suspension.
Aggrieved by the non-consideration of his
representations for promotion, the respondent filed O.A. before the Central
Administrative Tribunal. Learned counsel for the Railways, by placing reliance
on the Office Memorandum dated 14.09.1992, contended before the Tribunal that a
Government servant who is recommended for promotion by the DPC and in whose
case the circumstances mentioned in paragraph 2 are in existence, he shall not
be promoted. Accepting the above stand of the Railways, the Tribunal rejected
the petition filed by the respondent herein.
10) Aggrieved by the said decision of the Tribunal, the
respondent herein filed a petition before the High Court, wherein, the said
memorandum, particularly paragraph 2, was pressed into service. The High Court,
taking note of the conditions prescribed in paragraph 2 and in the absence of
any such condition as on the relevant date, i.e., 21.04.2003, set aside the
order of the Tribunal and directed the Railways to consider the case of the
respondent for promotion.
11) As per paragraph 2 of the said memorandum, at the time
of consideration of the Government servants for promotion, the following
details of Government servants in the consideration zone for promotion falling
in the categories mentioned should be specifically brought to the notice of the
DPC, viz.,
(i) Government servant is under suspension;
(ii) Government servant has been served with a charge sheet
and the disciplinary proceedings are pending; and
(iii) Government servant is facing prosecution for a
criminal charge and the said proceedings are pending.
As rightly observed by the High
Court, if the above conditions are available, even one of them, then the DPC
has to apply the ‘sealed cover process’. In the case on hand, it is not in dispute that
the relevant date is 21.04.2003, when the respondent’s batch mates were
promoted, admittedly on that date the respondent was not under suspension, no
charge sheet was served upon him nor he was facing any criminal prosecution. In
such circumstances, in terms of paragraph 2 referred to above, the recommendation of the DPC has to be honored and there is no question of
applying ‘sealed cover process’.
12) Mr. Mohan Jain, learned ASG submitted that paragraph 2
has to be read along with paragraph 7 of the office memorandum dated
14.09.1992. We have already extracted paragraph 7 of the memorandum which makes
it clear that a government servant, who is recommended for promotion by the DPC
if any of the circumstances mentioned in para 2 of the said memorandum arises
after the recommendations of the DPC are received, but before he is actually
promoted will be considered as if his case has been placed in a sealed cover by
the DPC. After extracting para 2, we also highlighted the three conditions
prescribed therein. Though, learned ASG has mentioned that four charge sheets
were issued to the respondent, enquires were completed and show cause notices
had already been served on the respondent, on the relevant date, namely,
21.04.2003, when his batch mates were promoted, none of the conditions was in existence in the
case of the respondent.
Admittedly, the respondent was not
placed under suspension, charge sheet had been issued only on 13.08.2003 i.e.
nearly after 4 months, no disciplinary proceedings were initiated or pending as
on 21.04.2003. In such circumstances, we are of the view that the High Court is
fully justified in issuing direction based on para 2 of the memorandum. No
doubt, the learned ASG heavily relied on later part of para 7 of the memorandum
which reads as under:
“He shall not be promoted until the conclusion of
disciplinary case/criminal proceedings and the provisions contained in this
letter will be applicable in his case also.” Inasmuch as none of the
circumstances was in existence as on 21.04.2003, reliance placed on the later
part of para 7 cannot be accepted or even not applicable.
13) It is not in dispute that an identical issue was
considered by this Court in Union
of India and Others vs. K.V.Jankiraman and Others, (1991) 4 SCC 109. The common questions involved in all
those matters were:
(1) What is the date from which it can be said that
disciplinary/criminal proceedings are pending against an employee?
(2) What is the course to be adopted when the employee is
held guilty in such proceedings if the guilt merits punishment other than that
of dismissal? and
(3) To what benefits an employee who is completely or
partially exonerated is entitled to and from which date?.
Among the three questions, we are
concerned about question No.1. As per the rules applicable, the “sealed cover
procedure” is adopted when an employee is due for promotion, increment etc. but
disciplinary/criminal proceedings are pending against him at the relevant time
and hence, the findings of his entitlement to the benefit are kept in a sealed
cover to be opened after the proceedings in question are over.
Inasmuch as we are concerned about
the first question, the dictum laid down by this Court relating to the said
issue is as follows:-
“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 initiatedagainst 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.
In para 17, this Court further held:
17. … 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….” After finding so, in the light of
the fact that no charge sheet was served on the respondent-employee when the
DPC met to consider his promotion, yet the sealed cover procedure was adopted.
In such circumstances, this Court held that “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 of 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…..We see no reason to interfere with
this order. The appeal, therefore,
stands dismissed.” The principles laid down with reference to similar
office memorandum are applicable to the case on hand and the contrary argument
raised by the appellant-Union of India is liable to be rejected.
14) In Coal
India Limited &Ors. vs. Saroj Kumar Mishra, AIR 2007 SC 1706, this Court, in para 22, has held that a departmental proceeding is ordinarily said
to be initiated only when a charge-sheet is issued.
15) In
Chairman-cum-Managing Director, Coal India Limited and Others vs. AnantaSaha
and Others, (2011) 5 SCC 142, this Court
held as under:
“27. There can
be no quarrel with the settled legal proposition that the disciplinary
proceedings commence only when a charge-sheet is issued to the delinquent
employee. (Vide Union of India v. K.V.Jankiraman, (1991)
4 SCC 109 and UCO Bank
v. RajinderLalCapoor, (2007) 6 SCC 694)” We also reiterate that the
disciplinary proceedings commence only when a charge sheet is issued. Departmental
proceeding is normally said to be initiated only when a charge sheet is issued.
16) Learned ASG, by drawing our attention to the decision
of this Court in Union
of India and Another vs. R.S. Sharma,
(2000) 4 SCC 394 submitted that in spite of decision of this Court in
Jankiraman’s case (supra) in view of para 7 of the office memorandum and in the
light of the fact that proceedings were initiated both criminal and
departmentally, the High Court committed an error by overlooking para 7 of
sealed cover process and contended that the direction issued by it cannot be
sustained. We have carefully gone through the factual position and the ultimate
ratio laid down by this Court in R.S. Sharma’s case (surpa). Even though in the
said decision, this Court has distinguished the decision in Jankiraman’s case
(supra) and held that the same is not applicable to its case, in the light of
the conditions mentioned in para 2 as well as para 7 of the office memorandum
dated 14.09.1992 and of the categorical finding that none of the conditions
mentioned therein has been fulfilled, we are of the view that the decision in
R.S. Sharma’s case (supra) is not helpful to the case of the appellant.
17) In the light of the above discussion and in view of
factual position as highlighted in the earlier paras, we hold that the ratio
laid down in Jankiraman’s case (supra) are fully applicable to the case on
hand, hence we are in agreement with the ultimate decision of the High Court.
Consequently, the appeal filed by the Union
of India fails and the same is dismissed.
However, there will be no order as to costs.
...…………………………………J.
(P. SATHASIVAM) ...…………………………………J.
(JAGDISH SINGH KHEHAR) NEW DELHI;
MARCH 15, 2013.
Now the concept of pendency of judicial proceedings has been borrowed and adopted from the provision of Rule 9 (6)(b)(i)(b) of CCS (Pension) Rules, 1962.
The O.M. also provides clarification on
the stage when prosecution for criminal charge can be stated to be pending by including
the provision of Rule 9 (6)(b)(i)(b) of
CCS (Pension) Rules, 1962.
F.No.22034/4/2012
-Estt. (D)
Government of
India
Ministry of
Personnel, Public Grievances and Pensions
(Department of
Personnel & Training)
North Block,
New Delhi
Dated the 2nd November,
2012
OFFICE MEMORANDUM
Subject :Comprehensivereview of instructions pertaining
to vigilance clearance for promotion-regarding.
Instructions issued vide O.M. No. 22012/1/99-Estt. (D)
dated 25.10.2004 based on the O.M. No. 22011/4/1991-Estt. (A) dated 14.09.1992
(issued on the basis of procedure laid down by Supreme Court in K.V.
Jankiramancase AIR 1991 SC 2010) makes it clear that vigilance clearance for
promotion may be denied only in the following three circumstances:-
(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.
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 O.Ms.
2. Existing instructions provide for processing the cases
of disciplinary proceedings in a time bound manner. A number of cases have
however, come to notice where initiation of disciplinary proceedings/issue of
chargesheet/ processing of the case is considerably delayed by the
administrative Ministries/Departments.
Such delays allow an officer whose conduct is under cloud,
to be considered for promotion. It becomes essential in respect of officer(s)
in whose case disciplinary proceedings are contemplated or pending and are
included in consideration zone for promotion, necessary action be taken for
placing the proposal before the DPC so that vigilance clearance is not allowed
as per conditions mentioned in para 1 above.
3. The Hon'ble Supreme Court in its judgment dated
27.08.1991 in Union of India Vs. K.V. Jankiraman etc.(AIR 1991 SC 2010) has
held
"5. 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. An employee found guilty of
misconduct cannot be placed on par with the other employees and his case has to
be treated differently. There is therefore, no discrimination when in the
matter of promotion, he is treated differently".
4. The issue of promotion of an officer who ay be
technically cleared from vigilance angle but in whose cas it may not be
appropriate to promote him/her in view of do btful integrity or where a charge-sheet
is under consideration etc has been under examination in this Department.
5. The 0.M No. 22012/1/99-Estt. (D) dated 25th October,
2004 further provides that a DPC shall assess the suitability of the Government
servant coming within the purview of the circumstances mentioned in para 2 of
the Office Memorandum No. 22011/4/91- Estt. (A) dated 14.09.1992, alongwith
other eligible candidates, without taking into consideration the disciplirrry
case/criminal prosecution pending. No promotion can be with eld merely on the
basis of suspicion or doubt or where the matter i under preliminary
investigation and has not reached the stage of is ue of charge sheet etc. If in
the matter of corruption/dereliction of uty etc., there is a serious complaint
and the matter is still under investigation, the Government is within its right
to suspend the official. In that case, the officer's case for promotion would
automatically be required to be placed in the sealed cover.
6. 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 proseOution for a criminal charge followed by
either penal-671 conviction or exoneration/ acquittal. During the stage of in
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.
7. The law on sealed cover based on the judgment of the
Apex Court in Union of India vs. K.V. Janakiraman etc. (AIR 1991 SC 2010), is
by now well settled. The O.M. dated 14.9.92 confined the circumstances for
adopting sealed cover to the three situations mentioned in para 2 of the said
O.M. Even after recommendation of
the DPC, but before appointment of the officer if any of
the three situations arise, the case is deemed to have been kept in sealed
cover by virtue of para 7 of the O.M. dated 14.9.92.
8. As regards the
stage when prosecution for a criminal charge can be stated to be pending, the
said O.M. dated 14.9.92 does not specify the same and hence the definition of
pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of
CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9 (6)(b)(i)
of CCS (Pension) Rules, 1972 provides as under :-
"(b) judicial proceedings shall be deemed to be
instituted -
(i) in the case of
criminal proceedings, on the date on which the complaint or report of a Police
Officer, of which the Magistrate takes cognizance, is made".
9. For the purpose
of vigilance clearance for review DPC, instructions exist in O.M. No. 22011/2
/99-Estt.(A) dated 21.11.2002 that review DPC will take into consideration the
circumstances obtaining at the time of original DPC and any subsequent
situation arising thereafter will not stand in the way of vigilance clearance
for review DPC. However, before the
officer is actually promoted it needs to be ensured that he / she is clear from vigilance angle and the
provision of para 7 of O.M. No. 22011 / 4 / 91-Estt. (A) dated 14.09.1992 are
not attracted.
10. Opening of sealed cover on conclusion of proceedings,
is covered in the instructions in para 3 of the O.M. dated 14.9.92. In cases
where by the time the Departmental Proceedings are concluded and the officer is
fully exonerated but another charge sheet has been issued, the second charge
sheet will not come in the way of opening of sealed cover and granting
promotion notionally from the date of
promotion of the junior and para 7 of O.M. dated 14.9.92
will not apply as clarified in the O.M. No. 22011/2 / 2002-Estt.(A) dated
24.2.2003. After the disciplinary proceedings are concluded and penalty is imposed,
vigilance clearance will not be denied. The details of the penalty imposed are
to be conveyed to the DPC. 4
11. This Department has issued separate instructions for
accordance of vigilance clearance to a member of Central Civil Services/holder
of Central Civil post with respect to (a) empanelment (b) deputation (c)
appointments to sensitive posts and assignments to training programmes (except
mandatory training) vide O.M. No.
11012/ 11/ 2007-(Estt. A) dated 14.12.2007. It has been
further clarified in the O.M. No. 11012/6/2008-Estt. (A) dated 07.07.2008 that
these instructions do not apply to promotions. While consideration for promotion is a right of an employee but
empanelment, deputation, posting and assignment for training (except mandatory
training) is not a right of an employee and is decided keeping in view the
suitability of the officer and administrative exigencies.
12. It may thus be noted that vigilance clearance cannot
be denied on the grounds of pending disciplinary/criminal/court case against a
Government servant, if the three conditions mentioned in Para 2 of this
Department's O.M. dated 14.09.1992 are not satisfied. The legally tenable and
objective procedure in such cases would be to strengthen the administrative
vigilance in each Department and to provide for processing the disciplinary
cases in a time bound manner. If the charges against a Government servant are
grave enough and whom Government does not wish to promote, it is open to the
Government to suspend such an officer and expedite the disciplinary
proceedings.
13. All Ministries/Departments are, therefore, requested
to keep in view the above guidelines while dealing with cases of vigilance
clearance for promotion of the Government servants.
(Virehdet Singh).
Under Secretary to the Government of India
Tel. No. 2309 3804
To,
All Ministries/Departments of the Government of India
Copy to:
1. President's Secretariat, New Delhi
2. Vice-President's Secretariat, New Delhi
3. The Prime Minister's Office, New Delhi
4. Cabinet Secretariat, New Delhi
5. RajyaSabha
Secretariat/LokSabha Secretariat, New Delhi
6. The Registrar General, the Supreme Court of India, New
Delhi.
7. The Registrar, Central Administrative Tribunal,
Principal
Bench, New Delhi.
8. The Comptroller and Auditor General of India, New Delhi
9. The Secretary, Union Public Service Commission, New
Delhi
10. The Secretary, Staff Selection Commission, New Delhi
11. All attached offices under the Ministry of Personnel,
Public
Grievances and Pensions
12. National Commission for Scheduled Castes, New Delhi
13. National Commission for Scheduled Tribes, New Delhi
14. National Commission for OBCs, New Delhi
15. Secretary, National Council (JCM), 13, Ferozeshah
Road,
New Delhi.
16. Establishment Officer 86 A.S.
17. All Officers and Sections in the Department of
Personnel
and Training.
18. Facilitation Center, DOP86T (20 copies)
19. NIC (DOP&T) for placing this Office Memorandum on
the
Website of DOP86T.
20. Establishment Section (200
copies).
Superintendent Service
Tax-Audit-II
Mumbai.
