Allahabad High Court

State Of U.P.Thru ... vs Kamlesh Chandra on 23 May, 2023

Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi, Shree Prakash Singh




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Sitting at Lucknow
 
**********************************************

RESERVED

A.F.R.

Judgment Reserved on : 17.03.2023

Judgment Pronounced on: 23.05.2023

Case :- SPECIAL APPEAL DEFECTIVE No. - 386 of 2021

Appellant :- State Of U.P.Thru Addl.Chief/Prin.Secy.State Tax Lko Andors.

Respondent :- Kamlesh Chandra

Counsel for Appellant :- C.S.C.

Counsel for Respondent :- Utsav Mishra

Hon'ble Devendra Kumar Upadhyaya J.

Hon'ble Subhash Vidyarthi J.

Hon'ble Shree Prakash Singh J.

(Per: Hon'ble Subhash Vidyarthi J.)

1. This Full Bench has been formed in furtherance of a referral order passed by a Division Bench which is dealing with a Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 assailing the judgment and order dated 01.07.2021 passed by an Hon'ble Single Judge whereby the Writ Petition No.11560 (S/S) of 2021 filed by the respondent - petitioner (who will hereinafter be referred to as the 'respondent') has been allowed and a direction has been issued to the State-appellants to proceed on the basis of the recommendations of the Departmental Promotion Committee (which will hereinafter be referred to as 'DPC') dated 01.10.2020 made in favour of the respondent at par with the other candidates, who have been granted promotion by means of the order dated 21.06.2021.

2. The aforesaid Writ Petition was filed by the respondent against the action of the State-appellants whereby he was denied promotion on the basis of the provisions contained in paragraph 11 of the Office Memorandum (which will hereinafter be referred to as 'O.M.') dated 28.05.1997 issued by the State Government, which contains provisions for keeping the recommendations of the Departmental Promotion Committee (hereinafter referred to as 'DPC') in a sealed cover, in certain circumstances.

3. A meeting of the DPC for considering promotion to the post of Additional Commissioner (Grade-II) was held on 01.10.2010 in which the case of the respondent was also considered. However, before the recommendation of the DPC could be given effect to, on 22.12.2020 a departmental enquiry was instituted against the respondent, pursuant to which a charge-sheet was issued on 23.04.2021. Promotion orders in respect of other candidates were issued on 21.06.2021 but the recommendations made by the DPC in respect of the respondent were kept in a sealed cover on the ground of institution of departmental proceedings and issuance of charge-sheet against him on 22.12.2020 and 23.04.2021 respectively.

4. Feeling aggrieved by his non-promotion, the respondent filed Writ Petition No.11560 (S/S) of 2021. The Hon'ble Single Judge allowed the Writ Petition relying upon the judgment dated 19.07.2010 rendered by a Division Bench of this Court in the case of State of U.P. and another vs. Nand Kumar Singh (Special Appeal No.478 of 2010), wherein it has been held that: -

"7. In our opinion, once three cases are manifest under which the sealed cover procedure has to be followed, Paragraph 11 will have to be considered in that context, otherwise this would result in adding another case. The only way to harmonize the rules, considering paragraphs 2 and 11, is to hold that if on the date of D.P.C. there was a charge-sheet and this was not within the knowledge of the Selection Committee even at the stage of issuing the letter of appointment, the sealed cover procedure can be followed. In our opinion, this would be a proper and harmonious construction of the two rules."

5. Relying upon the judgments of Hon'ble Supreme Court in the case of Union of India and others vs. K. V. Jankiraman and others, 1991 (4) SCC 109 and Union of India and others vs. Sangram Keshari Nayak, 2007 (6) SCC 704, the Hon'ble Single Judge held that since there was no adverse material against the petitioner on the date of DPC and since charge-sheet in the criminal case was filed in Court after ten days since meeting of the DPC, the provisions of the Government Order dated 28.05.1997 do not apply. It is in these background facts that the judgment of the Hon'ble Single Judge in the case of Nand Kumar Singh (supra) was rendered on 11.02.2010 which was affirmed by a Division Bench of this Court vide its judgment and order dated 19.07.2010.

6. The Division Bench has referred the following two questions for being decided by this Full Bench: -

(a) Whether the Division Bench judgments dated 19.07.2010 and 24.05.2018 rendered in Special Appeal No.478 of 2010, State of U.P. and another vs. Nand Kumar Singh and in Writ Petition No.13751 (S/B) of 2018, Gyan Prakash Pandey vs. State of U.P. and others, respectively, correctly construe and interpret the provisions of paragraph 11 of the Government Order dated 28.05.1997 in the light of the law laid down by Hon'ble Supreme Court in the case of R. S. Sharma, which is based on the interpretation and construction of the O.M. dated 12.01.1988 issued by DoPT that is similarly worded as paragraph 11 of the Government Order dated 28.05.1997 issued by the State Government ?

(b) Whether the Division Bench judgments of this Court in the case of Nand Kumar Singh (supra) and Gyan Prakash Pandey (supra) have failed to appreciate that Hon'ble Supreme Court in the case of Sangram Keshari Nayak (supra) did not record its disagreement or disapproval of the meaning, purport and application of O.M. dated 12.01.1988 in the earlier judgment rendered by a three Hon'ble Judges Bench in R. S. Sharma (supra) but opined that R. S. Sharma (supra) was not applicable in the facts of the case before it, therefore, the law declared by R. S. Sharma (supra) was binding?

7. The relevant parts of the O.M. dated 28.05.1997 issued by the State Government read thus: -

विषय:- राज्याधीन सरकारी सेवा में सेवारत कार्मिकों की प्रोन्नतियों के लिए होने वाले चुनावों में बंद लिफाफे की कार्यवाही आदि की प्रक्रिया का निर्धारण।

उपरोक्त विषय पर शासन की वर्तमान नीति कार्यालय ज्ञाप संख्या 15/85/1983-कार्मिक-1, दिनांक 30नवंबर 1983में निहित है। 'भारत संघ इत्यादि बनाम जानकी रमन इत्यादि (ए.आई.आर.1991एस.सी.2010) नामक वाद में माननीय उच्चतम न्यायालय के निर्णय दिनांक 27अगस्त 1991तथा स्थायीकरण के संबंध में वर्तमान में लागू नीति आदि के प्रकाश में सम्यक रूप से विचारोपरांत उपरोक्त कार्यालय ज्ञाप दिनांक 30नवंबर 1983को निरस्त करते हुए शासन द्वारा उक्त विषय पर अब निम्नलिखित प्रक्रिया निर्धारित की गई है:-

पात्रता सूची के प्रत्येक कार्मिक के संबंध में चयन समिति द्वारा विचार किया जाए

(1) प्रोन्नति हेतु गठित चयन समिति द्वारा उन सभी कार्मिकों की प्रोन्नति के संबंध में विचार किया जाएगा, जो संगत सेवा नियमों व पात्रता विषयक नियमों के तहत नियमानुसार पात्रता सूची में आते हैं। भले ही उनमें से किसी कार्मिक के विरुद्ध किसी प्रकार की जांच (प्रकीर्ण जांच, विभागीय-प्रारंभिक जांच, सतर्कता जांच, विभागीय औपचारिक जांच, प्रशासनाधिकरण की जांच) या अभियोजन की कार्यवाही विचाराधीन अथवा लंबित हो अथवा वह निलंबित चल रहा हो और चयन समिति द्वारा ऐसे समस्त लंबित विचाराधीन मामलों को छोड़ते हुए अन्य समस्त सेवाभिलेखों के आधार पर प्रोन्नति हेतु कार्मिक की उपयुक्तता पर विचार किया जाएगा

संस्तुतियों को मोहर बंद लिफाफे में रखे जाने की परिस्थितियां

(2) उपरोक्तानुसार विचार कर चयन समिति द्वारा स्पष्ट संस्तुति की जाएगी परंतु चयन समिति की संस्तुति को निम्नलिखित परिस्थितियों में (चाहे चयन समिति द्वारा संबंधित कार्मिक को प्रोन्नति के लिए संस्तुति किया गया हो या नहीं) अर्थात दोनों ही दशाओं में कार्यवृत्त में अंकित नहीं किया जाएगा वरन ऐसे कार्मिक के संबंध में कार्यवृत्त में मात्र यह अंकित करते हुए कि चयन समिति की संस्तुति मोहर बंद लिफाफे में रखी है, उस कार्मिक के विषय में चयन समिति की संस्तुति एक अलग शीट पर अंकित की जाएगी, जिसे मोहर बंद लिफाफे में रखा जाएगा और लिफाफे के ऊपर अंकित कर दिया जाएगा कि इसमें अमुक कार्मिक की प्रोन्नति के विषय में चयन समिति की सिफारिश रखी गई है: -

(क) यदि कार्मिक निलंबित चल रहा है,

(ख) यदि कार्मिक के विरुद्ध अनुशासनिक कार्यवाही या प्रशासन अधिकरण की कार्यवाही लंबित है, जिसके लिए आरोप पत्र जारी किया जा चुका है,

(ग) यदि आपराधिक आरोप के आधार पर कार्मिक के विरुद्ध अभियोजन की कार्यवाही लंबित है अर्थात न्यायालय में अभियोजन हेतु आरोप पत्र प्रस्तुत किया जा चुका है,

चयन के दिनांक के पश्चात परंतु प्रोन्नति के आदेशों के क्रियान्वयन के पूर्व प्रारंभ कार्यवाहियों के आधार पर प्रोन्नति रोका जाना

(11) यदि किसी कार्मिक की प्रोन्नति के लिए चयन समिति द्वारा संस्तुति की जा चुकी हो परंतु प्रोन्नति के आदेशों के क्रियान्वयन के पूर्व खंड 2 में उल्लिखित कोई ऐसी बात सामने आ जाए जो चयन समिति के समय चयन समिति के समक्ष होती तो चयन समिति की संस्तुति को मोहर बंद लिफाफे में रखा जाना आवश्यक होता, संबंधित कार्मिक को प्रोन्नत नहीं किया जाएगा, और ऐसी कार्यवाही के अंतिम परिणाम प्राप्त होने पर उसके संबंध में चयन समिति की संस्तुति को इस कार्यालय ज्ञाप में दिए गए उपबंधों के अधीन उसी प्रकार से क्रियान्वयन किया जाएगा मानो उसके विषय में चयन समिति की संस्तुति को मुहर बंद लिफाफे में रखा गया हो।

8. The English translation of Clauses 2 and 11 of the aforesaid O.M. will be as follows: -

2. Departmental Promotion Committee after making consideration as above shall make its clear recommendation. However, recommendation of the DPC shall not be recorded in its minutes under the following circumstances, (whether the DPC makes recommendation for promotion of the employee concerned or for withholding the same) instead, in respect of such employees only this much shall be mentioned in the minutes of the DPC that recommendation of the Selection Committee has been kept in a sealed cover and such recommendation shall be recorded on a separate-sheet which shall be kept in an envelop over which it shall be recorded that it contains recommendation of the Selection Committee in respect of promotion of the employee concerned:

(a) if the employee is under suspension;

(b) If either disciplinary proceeding or proceeding in an Administrative Tribunal is pending against the employee for which charge-sheet has been issued.

(c) In case proceedings of prosecution on the basis of criminal charges are pending against the employee concerned, that is to say, for his prosecution charge-sheet has been filed in the court.

11.If for promotion of a Government employee the Selection Committee has made recommendation, however, before implementation of the promotion order, any of the circumstances mentioned in the preceding paragraph 2, arise which if were present before the Selection Committee at the time of selection, it would have been necessary to keep the recommendation of Selection Committee in a sealed cover, such an employee shall not be promoted and recommendation in respect of such an employee shall be implemented after final outcome of the proceedings, as per the provisions of this Office Memorandum as if in respect of such an employee the recommendation had been kept in a sealed cover.

(Translation by the Court)

9. The relevant extracts of the O.M. dated 12.01.1988 issued by the Government of India are being reproduced below: -

"Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Procedure and guidelines to be followed.

The undersigned is directed to refer to the Ministry of Home affairs O.M. No. 39/4/56-Estt.(A) dated the 3rd November, 1958, and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment of the Supreme Court in Civil Appeal No. 2964 of 1986, Union of India and another versus Tajinder Singh decided on 26.9.1986. As a result of the review, and in supersession of all the earlier instructions on the subject, (referred to in the margin) the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent barrage of this Om for their guidance.

Cases of Government Servants to whom Sealed Cover Procedure will be applicable

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 the Department Promotion Committee:-

i) Government servants under suspension;

ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;

iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;

iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise.

Sealed Cover applicable to officers coming under cloud before promotion

7. 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 recommendation 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 he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also.

10. It is pertinent to note that the aforesaid O.M. dated 12.01.1988 issued by the Central Government was amended by a subsequent O.M. dated 31/07/1991, whereby sub-clause (iv) of clause 2 the O.M. dated 12.01.1988 was deleted.

11. Sri. Amitabh Rai, the learned Additional Chief Standing Counsel representing the State - Appellants has submitted that the provisions contained in para-11 of the O.M. dated 28.05.1997 come into play where a candidate is suspended or a charge-sheet is issued to him in a disciplinary proceeding or a charge-sheet is submitted against him in a criminal case, after the recommendation of the selection committee and before his actual promotion and the marginal note mentioned opposite para-11 makes it abundantly clear. As per Sri Rai, the judgments in the cases of State of U.P. and others versus Nand Kumar Singh and Gyan Prakash Pandey versus State of U.P. do not take into consideration the marginal note of para-11 of the O.M. dated 28.05.1997 and, therefore, the aforesaid judgments are per incurium. Sri Rai has submitted that the interpretation of clause 11 of the Government order dated 28.05.1997 in Nand Kumar Singh (Supra) confining it to adoption of sealed cover procedure in situations where there was adverse material available at the time of consideration by the DPC but it was not in the knowledge, is wrong as the aforesaid power is available with the authority under clause 2 itself, without any aid of clause 11. The object of insertion of clause 11 is to make a provision for adopting the sealed cover procedure in cases where a candidate is suspended or a charge-sheet is issued against him in a disciplinary proceeding or in a criminal case, prior to his actual promotion.

12. Per Contra, Sri Gaurav Mehrotra and Sri. Utsav Mishra Advocates, the learned Counsel for the respondent has submitted that the O.M. dated 28.05.1997 issued by the State Government and the O.M. dated 12.01.1998 issued by the Central Government, are not similarly worded. The Central Government had issued the O.M. dated 12.01.1998 prior to the judgment rendered by the Hon'ble Supreme Court in K. V. Jankiraman (Supra) whereas the State Government issued the O.M. dated 28.05.1997 after the aforesaid judgment and it specifically states that the O.M. was issued in light of the aforesaid judgment. The subject heading of both the O.Ms. are also different in as much as the subject heading of the O.M. issued by the Central Government specifically mentions Government Servants 'whose conduct is under investigation'. Clause 2 (ii) of the O.M. issued by the Central Government provides that the sealed cover procedure can be adopted in situations mentioned in four sub-clauses of Clause 2 and it includes situations where a decision has been taken to initiate the disciplinary proceedings or where a decision has been taken to accord sanction for prosecution, or in case of Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise, but there is no provision in the O.M. issued by the State Government for adoption of sealed cover procedure in such contingencies. There are numerous other differences also in the O.M. issued by the Central Government and that issued by the State Government. Sri Mehrotra submits that the judgment in R. S. Sharma (Supra), which was rendered in a case arising out of the O.M. issued by the Central Government, would not apply to the cases where the provisions of the O.M. issued by the State Government are being relied upon.

13. Sri. Amitabh Rai, the learned Additional Chief Standing Counsel and Sri. Gaurav Mehrotra, the learned Counsel for the respondent have placed before the Court the judgments in the cases of Union of India versus K. V. Jankiraman and others, (1991) 4 SCC 109, Union of India versus Kewal Kumar, (1993) 3 SCC 204, Union of India versus R. S. Sharma, (2000) 4 SCC 394, Union of India versus Sangram Keshri Nayak (2007) 6 SCC 704. Sri Mahendra Pratap Singh, Advocate, a learned Member of the Bar has also advanced submissions supporting the case of the respondent, although he is not representing any party in the case and he has provided written submissions also, raising the points which have already been addressed by Sri Gaurav Mehrotra, the learned counsel for the respondent.

14. The O.M. dated 28.05.1997 issued by the State Government and the O.M. dated 12.01.1988 issued by the Government of India deal with the same subject and are pari materia. Now we proceed to examine the words used in both the O.Ms. in order to examine the effect of applicability of the doctrine of pari materia. The relevant provisions of both the O.Ms. are being reproduced in a tabular form for their comparison: -

O.M. dated 28.05.1997 issued by the State Government

O. M. dated 12.01.1988 issued by the Government of India

Subject - Laying down the procedure for sealed cover procedure in selections for promotion of employees working in Government service

Subject -Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Procedure and guidelines to be followed

Recommendation of the DPC shall be kept in a sealed cover: -

(a) if the employee is under suspension;

(i) Government servants under suspension;

(b) If either disciplinary proceeding or proceeding in an Administrative Tribunal is pending against the employee for which charge-sheet has been issued.

(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;

(c) In case proceedings of prosecution on the basis of criminal charges are pending against the employee concerned, that is to say, for his prosecution charge-sheet has been filed in the court

(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;

(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise.

11. If any of the circumstances mentioned in the preceding sub-clauses arise after the recommendation of DPC but before implementation of the promotion order.

7. If any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted.

15. All the contingencies provided for by the O.M. dated 28.05.1997 issued by the State Government are also provided in the O.M. dated 12.01.1988 issued by the Government of India, but the converse is not true, as the later O.M. provides for adopting sealed cover procedure in case of Government servants in respect of whom a decision has been taken to initiate disciplinary proceedings or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution and also in respect of Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise, whereas both the aforesaid contingencies are not provided for in the O.M. dated 28.05.1997 issued by the State Government. However, Clause 11 of the O.M. dated 28.05.1997 issued by the State Government is similarly worded as Clause 7 of the O.M. dated 12.01.1988 issued by the Government of India and both the aforesaid clause will have to be interpreted in similar manner.

16. Before proceeding to discuss the judgments cited at Bar regarding interpretation of the relevant Clause, we take note of the submission of Sri. Mehrotra, the learned Counsel for the respondent, that judgments should not be read as statutes and a word or a sentence may not be picked up from a judgment and treated as the ratio decidendi of the judgment. In support of this submission, he has placed reliance on the judgments in the cases of Roger Shashoua v. Mukesh Sharma, (2017) 14 SCC 722, wherein the Hon'ble Supreme Court has referred to some earlier judgments on this point in the following paragraphs: -

"55. At this juncture, we think it necessary to dwell upon the issue whether Shashoua principle is the ratio decidendi of BALCO and Enercon (India) Ltd. and we intend to do so for the sake of completeness. It is well settled in law that the ratio decidendi of each case has to be correctly understood. In Regional Manager v. Pawan Kumar Dubey (1976) 3 SCC 334, a three-Judge Bench ruled: (SCC p. 338, para 7)

"7. ... It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

56. In Director of Settlements v. M.R. Apparao,(2002) 4 SCC 638, another three-Judge Bench, dealing with the concept whether a decision is "declared law", observed: (SCC p. 650, para 7)

"7. ... But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. ..."

57. In this context, a passage from CIT v. Sun Engg. Works (P) Ltd. (1992) 4 SCC 363 would be absolutely apt: (SCC pp. 385-86, para 39)

"39. ... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete "law" declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. ..."

17. Sri. Mehrotra has also relied upon Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14, in which the Hon'ble Supreme Court summarized and reiterated the law in this regard, as follows: -

"7. It is well settled that the judgment of a court is not to be read mechanically as a Euclid's theorem nor as if it were a statute.

"14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem, 1991 AC 495

'[Now before] discussing Allen v. Flood 1898 AC 1, and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before--that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'

(emphasis in original)

We entirely agree with the above observations.

15. In Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213, this Court observed:

'18. ... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.'

16. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 this Court observed:

'59. ... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.'

(emphasis in original)

17. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani(2004) 8 SCC 579, a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, paras 9-12)

'9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. (emphasis in original) These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. (emphasis supplied) In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord MacDermott observed:

"... The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge, ..."

10. In Home Office v. Dorset Yacht Co. Ltd. 1970 AC 1004, Lord Reid said:

"... Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."

Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 2 All E R 127, observed:

"... One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;"

And, in British Railways Board v. Herrington (1972) 1 All E R 749 Lord Morris said:

"... There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo [, J.]) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

***

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. (emphasis in original) My plea is to keep the path of justice clear of obstructions which could impede it.

(emphasis supplied)"

The same view was taken by this Court in Sarva Shramik Sanghatana (KV) v. State of Maharashtra (2008) 1 SCC 494 and in Govt. of Karnataka v. Gowramma (2007) 13 SCC 482."

18. Sri. Mehrotra has further submitted that judgments based on facts should not be treated as binding precedents. In support of the aforesaid submission, he has placed reliance upon the judgment in the cases of Prakash Chandra Pathak versus State of Uttar Pradesh, AIR 1960 SC 195, in which the Hon'ble Supreme Court held that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. He has also placed the judgment in the case of Jwala v. State, AIR 1963 All 161, wherein a Full Bench of this Court held that: -

"11. It is well known that a case is an authority for what it actually decides and not for cases to arise in future and that a proposition of law contained in a judgment, however, widely it may be expressed, is applicable only to the facts of the case. In Quinn v. Leathem [(1901) A.C. 495.] Lord Halsbury observed at page 506:

"every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides."

19. Relying upon a decision of the Hon'ble Supreme Court in Gunatian and others versus Hambamma and others, (2005) 6 SCC 228, Sri. Mehrotra has next submitted that side heading cannot be used as an aid to construction and the same cannot be taken aid of in interpreting any provision.

20. In Union of India versus K. V. Jankiraman and others, (1991) 4 SCC 109, the Hon'ble Supreme Court was dealing with the following three questions, of which only the first is relevant for the present matter: -

(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?

(3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?

21. It is important to note that the question of applicability of sealed cover procedure when any of the circumstances warranting its applicability mentioned in the clause 2 of the O.M. dated 28.05.1997 issued by the State Government or in Clause 2 of the O.M. dated 12.01.1988 issued by the Central Government arise after the recommendation of DPC but before implementation of the promotion order, was not involved in Jankiraman.

22. In Jankiraman, the Hon'ble Supreme Court observed that "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." Thereafter, the Hon'ble Supreme Court proceeded to decide 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. 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;

(2) * * *

(3) * * *

(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;"

17.There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. 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."

(Emphasis Supplied)

23. In Delhi Development Authority v. H.C. Khurana, (1993) 3 SCC 196, the facts were that while the respondent was employed as an Executive Engineer in the Delhi Development Authority (DDA), a preliminary memo was served on him on 06.11.1985. A charge-sheet was framed on 11.07.1990 and it was dispatched on 13.07.1990. However, the respondent proceeded on two months' medical leave and, therefore, on 17.07.1990 another Executive Engineer received it and gave the intimation that the respondent was on leave, adding that the same would be handed over to the respondent on his return from leave. On 28.11.1990, the DPC met and in view of the earlier decision to initiate disciplinary proceedings against the respondent, it followed the sealed cover procedure in case of the respondent. The Hon'ble Supreme Court took note of Clause (ii) of para 2 of O.M. dated 12.01.1988 which provides that sealed cover procedure will be applicable to Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;" and held that: -

"8. These words clearly indicate that the sealed cover procedure was applicable, in cases where the 'disciplinary proceedings are pending' in respect of the Government servant; or 'a decision has been taken to initiate disciplinary proceedings'. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure..."

* * *

10. This plain meaning of the expression used in clause (ii) of para 2 of O.M. dated January 12, 1988, also promotes the object of the provision. The expression refers merely to the decision of the authority, and knowledge of the Government servant, thereof, does not form a part of that decision. The change made in clause (ii) of para 2 in O.M. dated September 14, 1992, merely clarifies this position by using the expression 'charge-sheet has been issued' to indicate that service of charge-sheet is not necessary; and issue of the charge-sheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken. In our opinion, Jankiraman takes the same view, and it is not possible to read that decision otherwise, in the manner suggested by learned counsel for the respondent.

11.The decision in Jankiraman is based, inter alia, on O.M. dated January 12, 1988. The facts of the cases dealt with in the decision in Jankiraman do not indicate that the Court took the view, that even though the charge-sheet against the Government servant was framed and direction given to dispatch the same to the Government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the DPC, that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected subsequent to the meeting of the DPC. Moreover, in Jankiraman itself, it was stated thus:

"14. To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh decided on September 26, 1986, the Government of India in the Department of Personnel and Training issued another office memorandum No. 22011/2/86. Estt. (A), dated January 12, 1988 in supersession of all the earlier instructions on the subject including the office memorandum dated January 30, 1982.... A further guideline contained in this memorandum is that the same sealed cover procedure is to be applied where a Government servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken."

24. The decision rendered in the case of K. V. Jankiraman (Supra) was followed by the Hon'ble Supreme Court in Union of India v. Sudha Salhan (Dr), (1998) 3 SCC 394 by reiterating that "if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to a higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority.

25. In Union of India v. R. S. Sharma, (2000) 4 SCC 394, an FIR was registered against the respondent - a Divisional Engineer in the Telecom Department and the CBI took up the investigation. On 10.03.1988, he was suspended but within six months the suspension order was revoked. Nonetheless, CBI continued with the investigation and on completion thereof they applied to the Government of India for according sanction to prosecute the respondent. In the meanwhile DPC considered the cases of other persons in the Department for promotion, but deferred the case of the respondent on account of the pendency of investigation of the said allegations against him. The respondent then moved the Tribunal and on 30-11-1990, the Tribunal passed an interim direction that DPC should consider the case of the respondent for promotion. Pursuant thereto DPC considered the case of the respondent on 03.04,1991 but it kept the recommendations in a sealed cover as enjoined by the conditions specified in the O.M. dated 12-1-1988 issued by the Government of India. The Hon'ble Supreme Court decided the issue as follows: -

"5. At this stage, it is relevant to extract para 2 of the said office memorandum. It reads thus:

"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 should be specifically brought to the notice of the Departmental Promotion Committee:

(i) government servants under suspension;

(ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;

(iii) government servants in respect of whom prosecution for a criminal charge is pending or a sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;

(iv) government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any agency, departmental or otherwise."

6. It is not disputed before us that on 3-4-1991 when DPC decided to put the recommendations concerning the respondent in the sealed cover, investigation into the case involved in the aforesaid FIR was pending. Hence the Sealed Cover Procedure was adopted as his case fell within the purview of clause (iv) of the aforesaid second para. But on 31-7-1991 a new development took place. As per Office Memo No. 22011/1/91-Estt.(A) the restriction imposed as per clause (iv) was deleted from the second para of the "Sealed Cover Procedure".

The Hon'ble Supreme Court referred to Clause 7 of the O.M. dated 12.01.1988 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."

The Hon'ble Supreme Court held that: -

"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.

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 recommendations 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".

26. In R. S. Sharma (Supra), the Hon'ble Supreme Court distinguished K. V. Jankiraman in the following words: -

"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 v. K.V. Jankiraman 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 Jankiraman was since followed in Union of India v. Dr Sudha Salhan and Bank of India v. Degala Suryanarayana. 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.

17. We may also point out, in this context, that in Delhi Development Authority v. H.C. Khurana and Union of India v. Kewal Kumar this Court found that the ratio in Jankiraman is applicable only to the situations similar to the cases discussed therein, and hence the Sealed Cover Procedure resorted to by DPC in those two cases was upheld by this Court."

27. The Hon'ble Supreme Court highlighted the difference in Clause 2 applicable in Jankiraman with the relevant Clause applicable in R. S. Sharma. However, the provisions of Clause 7 of the O.M. dated 12.01.1988, which were explained in R. S. Sharma, had not been discussed and explained in Jankiraman. Clause 11 of the O.M. dated 28.05.1997 is similarly worded as Clause 7 of the O.M. dated 12.01.1988 and, therefore, R. S. Sharma will be relevant for interpretation of Clause 11 of the O.M. dated 28.05.1997 issued by the State Government.

28. Nand Kumar Singh versus State of U.P. & others, 2010 SCC OnLine All 288, was a case decided by a Single Judge Bench of this Court involving a challenge to adoption of the sealed cover procedure in purported exercise of power conferred by the O.M. dated 28.05.1997, in which it was held that: -

"The Government Order dated 28.05.1997 has been issued on the basis of decision of Hon'ble Supreme Court in Union of India v. K.V. Jankiraman AIR 1991 (4) SC 2010. The para-2 (ga) of the Government Order provides that if the prosecution is pending against the employee on the basis of criminal charges, meaning thereby the charge-sheet for prosecution has been submitted in the court. In the said case, in such a situation, close envelope proceedings will be adopted for keeping the recommendation of the Departmental Promotion Committee. The para-11 further provides that if any recommendation of the Selection Committee has been made, but before the issuance of the promotion order, anything comes in the light, if the same would have been before the Selection Committee, and the same requires to keep the recommendation of the Selection Committee in sealed envelope, the promotion to the concerned employee will not be given till the final decision and the recommendation would be deemed to be kept in the sealed envelope.

The Hon'ble Supreme Court in the matter of Union of India and others v. Dr. Sudha Salhan (Smt.) 1998 (3) SCC 394 while agreeing to the decision of Union of India v. K.V. Jankiraman 1991 (4) SCC 109 held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority.

29. The aforesaid Judgment was challenged by the State by filing Special Appeal No. 478 of 2010, which was dismissed by means of a judgment and order dated 19.07.2010, holding that: -

"5. Paragraph-2 of the Notification sets out that the sealed cover procedure will be followed in the following three cases: the same is pending.

(i) When the employee is under suspension.

(ii) When the departmental proceedings are pending against the employee, to which a charge-sheet has been issued.

(iii) When the charge-sheet has been filed against the employee and

* * *

7. In our opinion, once three cases are manifest under which the sealed cover procedure has to be followed, Paragraph 11 will have to be considered in that context, otherwise this would result in adding another case. The only way to harmonize the rules, considering paragraphs 2 and 11, is to hold that if on the date of D.P.C. there was a charge-sheet and this was not within the knowledge of the Selection Committee even at the stage of issuing the letter of appointment, the sealed cover procedure can be followed. In our opinion, this would be a proper and harmonious construction of the two rules."

30. Neither the Single Judge, nor the Division Bench referred to the decision of the Hon'ble Supreme Court in R. S. Sharma (Supra) while interpreting Clause 11 of the O.M. dated 28.05.1997. The state had challenged the aforesaid judgment passed in Special Appeal by filing S.L.P. (Civil) No. 5741 of 2013, but it chose to withdraw the same and, accordingly, the SLP was dismissed by means of an order dated 18.03.2013.

31. In Gyan Prakash Pandey versus State of U.P., 2018 (5) ALJ 547, a meeting of the DPC was convened on 05.12.2017 for promotion to the post of Chief Engineer (Level-II) from amongst eligible Superintending Engineers, but the recommendations of D.P.C. with regard to two Superintending Engineers were kept in a sealed cover on account of pendency of disciplinary inquiry/criminal proceedings against them. Out of the two Superintending Engineers whose result/recommendation was kept in sealed cover, one had already retired way back on 31.12.2017 and the sealed cover in respect of the other Superintending Engineer was opened on 26.04.2018 and he was found to be ineligible for promotion to the post of Chief Engineer. Thus when the said post of Chief Engineer (Level-II) fell vacant on 27.04.2018, the petitioner preferred a representation praying to promote him against the said vacant post. In the meantime, another post of Chief Engineer (Level-II) fell vacant on 30.04.2018. It was contended that when the petitioner had been found eligible and on 01.05.2018 two posts of Chief Engineer fell vacant, there was no legal impediment against the petitioner's claim. The State contended that the meeting of the DPC was held on 05.12.2017 in which a recommendation had been made for the petitioner's promotion but before the said recommendation could be implemented, illegalities committed by the petitioner during the years 2013 to 2016 came into light and disciplinary proceedings were initiated against him vide order dated 11.05.2018. A charge sheet had also been issued to the petitioner on 11.05.2018 leveling serious charges of causing financial loss to the State Government. The State further contended that the recommendation of the D.P.C. held on 05.12.2017 had not been implemented till 11.05.2018, therefore, the petitioner's case falls under clause 11 of the Government Order dated 28.05.1997.

32. The Division Bench while deciding Gyan Prakash Pandey followed the earlier Division Bench judgment in Nand Kumar Singh and held that: -

"interpretation of provisions of Clause-11 of the Government Order dated 28.5.1997 as suggested by the State Counsel is an incorrect interpretation, which is not acceptable particularly in view of the verdict given by the coordinate Bench in the case of Nand Kumar Singh's case [supra]. Moreover, a bare perusal of Clause-11 of the said government order reveals that conditions which have been provided in Clause-2 are to be taken into consideration, if the same were present but somehow could not be brought to the knowledge of the D.P.C., then the recommendation of the selection committee will be treated to be kept in a sealed cover.

30. In the present case, undisputedly, a decision to initiate disciplinary proceedings have been taken on 11.5.2018 and a charge sheet has been issued on the same date whereas the petitioner was recommended by the DPC on 5.12.2017 and such the adverse material said to be found, much later in April, 2018 that too after filing of the writ petition. The respondents have stated that the charges against the petitioner relate to the period from 2013 to 2016. In this connection, it may be pointed out that whether the charges relate to the time which is prior to the date on which the DPC was held or not is not be to be seen but the fact which is to be examined is the date on which the charge sheet was issued, which, undisputed, in the instant case is subsequent to the date on which the DPC was held and recommendation for promotion of the petitioner to the post of Chief Engineer (LEVEL-II) was made."

33. The Division Bench while deciding Gyan Prakash Pandey referred to the judgment in the case of Sangram Keshari Nayak, in which the application of sealed cover procedure in respect of an Officer of Indian Railway Traffic Services was in question. In Sangram Keshari Nayak (Supra), the Hon'ble Supreme Court had taken into consideration the relevant provision of the applicable Circular, which was as follows: -

"2. At the time of consideration of the case of Government servants for empanelment, details of Government 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.

6. 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 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 Departmental Promotion Committee. 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."

Referring to Jankiraman, the Hon'ble Supreme Court held that: -

"13.Whereas Para 6 of the said circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in Para 2 thereof arise after the recommendations of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter alia when one or the other conditions mentioned in Para 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge-sheet had been issued or, in other words, a disciplinary proceeding was pending..."

14. ... Para 2 of the said circular specifically refers to submission of charge-sheet as the cut-off date when a departmental proceeding can be said to have been initiated. Even otherwise such a meaning had been given thereto by this Court in K.V. Jankiraman..."

34. In Sangram Keshari Nayak, the Hon'ble Supreme Court considered and rejected the contention based on R. S. Sharma (Supra), in the following paragraphs: -

"15.Reliance placed by Mr Mohan on R.S. Sharma in our opinion, does not advance the appellant's case. In that case, cases where sealed cover procedure were applicable were contained in Para 2 of the office memorandum dated 12-1-1988 which reads as under:

(i) government servants under suspension;

(ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;

(emphasis in original)

16. Serious allegations of financial misdemeanours were made against the respondent therein. The Central Bureau of Investigation took up investigation. He was suspended on 10-3-1988. Although the said order of suspension was revoked, investigation continued. The DPC considered his case for promotion on 3-4-1991 and resorted to sealed cover procedure. Only in the aforementioned situation, K.V. Jankiraman and other decisions following the same stood distinguished opining that Para 7 of the said office memorandum would be attracted, which is in the following terms: (R.S. Sharma case, SCC p. 398, para 11)

"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."

It was held:

"One is that, what the Department did not do is not the yardstick indicated in Para 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the government servant who is not 'actually promoted' by that time. Second is that, the stand taken up by the Department is that in spite of deletion of Clause (iv) of the second para, the recommendations of DPC must remain in the sealed cover on account of the conditions specified in Clause (iii) of the said paragraph by virtue of the operation of Para 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991."

17. Therein H.C. Khurana and Kewal Kumar were noticed.

18. In H.C. Khurana the question was as to what would be the meaning of the word "issued" when a disciplinary proceeding had been initiated by framing the charge-sheet and the same had been dispatched. Para 2 of the circular letter in question was similar to R.S. Sharma. It is in that context, what would be the meaning of the word "issued" when the decision has been taken to initiate disciplinary proceeding came up for consideration. As the circular contained a provision of that nature which is absent in the present case, the said decision, in our opinion, also has no application in the instant case.

19. For the selfsame reasons, the decision of this Court in Kewal Kumar is also not attracted."

(Emphasis supplied)

35. Thus Sangram Keshari Nayak extensively discussed R. S. Sharma (Supra) and distinguished the same as Clause 2 of the circular applicable in R. S. Sharma contained a provision of that nature which was absent in the circular applicable in Sangram Keshsri Nayak. However, in para 13 of the judgment the Supreme Court held that Para 6 of the relevant circular, which was similar to Clause 11 of the O. M. dated 28.05.1997 and Clause 7 of the O.M. dated 12.01.1988, provides applying the sealed cover procedure in the event circumstances mentioned in Para 2 thereof "arise after the recommendations of the DPC". Therefore, the Hon'ble Supreme Court took a view similar to the view taken in R. S. Sharma, although Clause 7 of the O. M. dated 12.01.1988 was specifically not in issue in the judgment in R. S. Sharma and there is no conflict in the judgments in R. S. Sharma and Sangram Keshri Nayak so far as interpretation of Clause 7 of the O. M. dated 12.01.1988 is concerned. Therefore, R. S. Sharma holds the field so far as interpretation of Clause 7 of the O.M. dated 12.01.1988 is concerned.

36. Sri. Gaurav Mehrotra has relied upon the judgment in the case of Union of India v. Anil Kumar Sarkar, (2013) 4 SCC 161. In that case, promotions in furtherance of recommendations of DPC were made on 21.04.2003 and on that date, none of the conditions mentioned in Clause 2 of the O.M. was in existence in case of the respondent. As on 21.04.2003, neither any disciplinary proceedings had been initiated against the respondent, nor had he been placed under suspension. A charge-sheet was issued only on 13-8-2003 i.e. nearly 4 months after issuance of promotion orders in furtherance of recommendations of the DPC in favour of other candidates. In such circumstances, the Hon'ble Supreme Court upheld the decision of the High Court to promote the respondent based on Para 2 of the memorandum. The Supreme Court held that in such circumstances, as none of the circumstances was in existence as on 21.04.2003, Para 7 of the O.M. will not be applicable. It was a judgment rendered on the basis of the peculiar facts of the case and it is not applicable to situations where circumstances mentioned in Clause 2 of the O.M. arise after recommendations of the DPC but before implementation of the same.

37. Sri. Mehrotra has also relied upon Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625. The relevant Circular applicable in that case provided as follows: -

"All orders for promotions will be issued only after vigilance clearance. However, vigilance clearance shall not be withheld for the mere fact that a PE or RC has been registered by CBI against an officer or that complaints are being looked into a preliminary enquiry departmentally but no conclusion has been reached about the prima facie guilt of the officer. Vigilance clearance shall be withheld only when:

(1) in the case of a preliminary enquiry, either by CBI or departmental agencies, the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge-sheet may be issued on specific imputations for departmental action, and

(2) in case of a regular case, the competent authority has decided to accord sanction for prosecution of the officer in court.

Until the competent authority arrives at such a conclusion, the officer may be treated on a par as per with orders (sic) in the matter of promotion, confirmation, etc.

These instructions shall come into force with immediate effect."

38. There was no provision in the aforesaid circular similar to Clause 11 of the O.M. dated 28.05.1997 and, therefore, the aforesaid judgment is not of any help in interpreting Clause 11 of the O.M. dated 28.05.1997. The Hon'ble Supreme Court has held in the aforesaid judgment that: -

"13. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."

39. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, the Hon'ble Supreme Court held that:--

"A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

40. In Escorts Ltd. v. CCE, (2004) 8 SCC 335 and Bharat Petroleum Corpn. Ltd. v. N. R. Vairamani, (2004) 8 SCC 579, the Hon'ble Supreme Court held that:--

"8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951) 2 All ER 1 (HL), Lord MacDermott observed : (All ER p. 14 C-D)

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..."

9. In Home Office v. Dorset Yacht Co., (1970) 2 All ER 294, Lord Reid said (All ER p. 297g-h),

"Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."

Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2)4 observed : (All ER p. 1274d-e) "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" And, in Herrington v. British Railways Board Lord Morris said : (All ER p. 761c)

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

10. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

41. None of the aforesaid judgments rendered by the Hon'ble Supreme Court after issuance of the O.M. dated 28.05.1997, viz. Union of India versus Sudha Salhan, Union of India versus R. S. Sharma and Union of India versus Sangram Keshari Nayak, have taken into consideration the provisions contained in the aforesaid O.M. Therefore, none of these judgments would be relevant for interpreting such of the provisions of the O.M. dated 28.05.1997, as are not there in the O.M. dated 12.01.1988 issued by the Government of India.

42. In view of the foregoing discussion, our answer to the two questions referred to as are as follows: -

(a) With utmost respect at our command, we are of the considered opinion that the judgments in the cases of Nand Kumar Singh and Gyan Prakash Pandey rendered by two different Division Benches of this Court do not construe and interpret the provisions of Clause 11 of the Government Order dated 28.05.1997 in the light of the law laid down by Hon'ble Supreme Court in the case of R. S. Sharma (Supra), regarding interpretation of Clause 7 of the O.M. dated 12.01.1988 issued by the Government of India, which is similar to Clause 11 of the O.M. dated 28.05.1997 issued by the State Government and, therefore, they do not enunciate correct interpretation of the aforesaid Clause.

(b) Nand Kumar Singh (supra) and Gyan Prakash Pandey (supra) have failed to appreciate that in Sangram Keshari Nayak, R. S. Sharma was distinguished to the extent that Clause 2 of the circular applicable in R. S. Sharma contained a provision of that nature which was absent in the circular applicable in Sangram Keshsri Nayak. However, in para 13 of the judgment in Sangram Keshari Nayak the Supreme Court held that Para 6 of the relevant circular, which was similar to Clause 11 of the O. M. dated 28.05.1997 and Clause 7 of the O.M. dated 12.01.1988, provides for application of the sealed cover procedure in case the circumstances mentioned in Para 2 thereof "arise after the recommendations of the DPC". Therefore, the Hon'ble Supreme Court took a view similar to the view taken in R. S. Sharma, although Clause 11 of the O. M. dated 12.01.1988 was specifically not in issue in the judgment in R. S. Sharma and there is no conflict in the judgments in R. S. Sharma and Sangram Keshri Nayak so far as interpretation of Clause 7 of the O. M. dated 12.01.1988 is concerned. Therefore, R. S. Sharma holds the field so far as interpretation of Clause 7 of the O.M. dated 12.01.1988 is concerned and, therefore, the law declared by R. S. Sharma continues to be binding.

43. Let the Special Appeal be placed before the appropriate Bench.

[Devendra Kumar Upadhyaya J. ]

[Subhash Vidyarthi J. ]

[Shree Prakash Singh J. ]

Date: 23.05. 2023

Ram.