Sh. Prem Chand Tomar S/O Late Sh. ... vs The Commissioner, Municipal ...
2002 Latest Caselaw 2065 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner was appointed by the Respondent as an Assistant Superintendent (Garden) [subsequently redesignated as Assistant Director (Horticulture)] in September, 1978. The Petitioner was appointed against a vacancy reserved for a Scheduled Caste candidate. His appointment was on the basis of a Scheduled Caste certificate submitted by him.

2. Sometime in 1986, the Petitioner was promoted to the post of Deputy Director (Horticulture) against a reserved (Scheduled Caste) vacancy. In January 1992, one post of Director (Horticulture) fell vacant. The Petitioner was assigned the work of Director (Horticulture) with effect from 1st January, 1992.

3. On 14th June, 1993 a charge sheet was issued to the Petitioner for initiation of major penalty proceedings in respect of a case described as the Tribunal case.

4. On 23rd August, 1993, the Petitioner was placed under suspension in respect of another matter altogether in which reliable information had been received that the Petitioner had acquired Scheduled Caste status by giving false information and a prima facie case was, therefore, made out for departmental action against him in this regard.

5. Around this time, a Departmental Promotion Committee (for short DPC) meeting was to be held for promotion of the post of Director (Horticulture) with the Respondent. The promotion was apparently to be made in consultation with the Union Public Service Commission (for short UPSC).

6. Accordingly, the Respondent wrote a letter dated 2nd September, 1993 to the Secretary, UPSC informing him that major penalty proceedings had been initiated against the Petitioner for which a charge sheet had been served upon him (that is, in the Tubewell case). He was also informed that apart from this, the Petitioner had been placed under suspension with effect from 23rd August, 1993 since a prima facie case for initiating departmental action against him had been made out.

7. When the DPC met on 16th September, 1993 it decided to place its recommendations in respect of the Petitioner in a sealed cover.

8. Subsequently, in May, 1996, the Central Bureau of Investigation (CBI) filed a charge sheet against the Petitioner for having fraudulently obtained a Scheduled Caste certificate. On 5th February, 1997, departmental proceedings were initiated against the Petitioner for having fraudulently obtained a Scheduled Caste certificate.

9. On 6th February, 1998, the order of suspension dated 23rd August, 1993 pertaining to the Scheduled Caste certificate case was revoked and the Petitioner was reinstated pending an enquiry into the allegations made against him in this regard.

10. The earlier enquiry initiated against the Petitioner in respect of the Tubewell case was decided in his favor on 19th November, 1998. The Petitioner was exonerated of the charges made against him.

11. On or about 15th May, 2000, the Petitioner sent a representation to the Respondent praying that the recommendation given by the DPC that was kept in a sealed cover be now made known and given effect to. A reminder was sent by the Petitioner on 1st September, 2000 but to no effect.

12. Not having received a favorable response to his requests, the Petitioner filed a writ petition praying for a direction to the Respondent to open the sealed cover and declare the result of the Petitioner for selection to the post of Director (Horticulture).

13. Significantly, in his writ petition the Petitioner did not mention anything at about his suspension and the departmental enquiry relating to his having fraudulently obtained a Scheduled Caste certificate. He only mentioned the facts pertaining to the Tubewell case.

14. Notice was issued in the writ petition by a learned Single Judge of this Court. The Respondent in its affidavits brought out all the aforesaid facts on record. The prayer in the writ petition was, of course, opposed by the Respondent.

15. Learned counsel for the parties were heard on 20th November, 2002 when orders were reserved.

16. My attention has been drawn to the Office Memorandum dated 14th September, 1992 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, on which reliance was placed by learned counsel for both the parties.

17. Paragraph 2 of the aforesaid Office Memorandum makes it clear that the DPC must be informed whether a government servant, whose case is being considered, is under suspension or not and whether any charge sheet has been issued to him. Paragraph 2 of the Office Memorandum dated 14th September, 1992 reads as follows:-

"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 Departmental Promotion Committee.

i) Government servants under suspension;

ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

iii) Government servants in respect of whom prosecution for a criminal charge is pending."

18. It was apparently in pursuance of this that the Respondent wrote to the Secretary, UPSC intimating that a charge sheet had been issued to the Petitioner in respect of the Tubewell case and that the Petitioner had been suspended in connection with having fraudulently obtained a Scheduled Caste certificate.

19. Paragraph 2.1 of the aforesaid Office Memorandum requires the DPC, in such a case, to keep its recommendation in a sealed cover. This paragraph reads as follows:-

"2.1 The Departmental Promotion Committee shall assess the suitability of the government servants coming within the purview of the circumstances mentioned above Along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending The assessment of the DPC including 'Unfit for Promotion and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed Findings regarding suitability for promotion to the grade/post of.....in respect of Shri.....(name of the Government servants) Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.....The proceedings of the DPC need only contain the note. The finding are contained in the attached sealed cover.' The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover."

20. It appears that the DPC decided to keep its recommendation in respect of the Petitioner's promotion in a sealed cover in view paragraph 2.1 of the Office Memorandum dated 14th september, 1992.

21. Paragraph 2.2 and paragraph 3 of the aforesaid Office Memorandum postulate the sealed cover procedure being followed till the disciplinary cases against the government servant concerned are concluded. Paragraphs 2.2 and 3 read as follows:-

"2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees conveyed till the disciplinary case/criminal prosecution against the Government servant concerned is concluded."

3. On the conclusion of the disciplinary case/criminal prosecution which result in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servants completely exonerated the due date of his promotion will be determined....."

22. It is quite clear that when the DPC met in September, 1993, the Petitioner was facing a departmental enquiry in the Tubewell case. In this case, the Petitioner was exonerated on 19th November, 1998, that is, much after the DPC met. The sealed cover could not have been opened until then, and indeed, this was not even the case of the Petitioner. In the meanwhile, before the DPC met, the Petitioner was placed under suspension in respect of the fraudulently obtained Scheduled Caste certificate. Even though this suspension was subsequently revoked, the departmental inquiry in regard to this offence is still pending.

23. As required by paragraph 2 of the Office Memorandum dated 14th September, 1992 the DPC was required to be intimated of all these facts, including the suspension of the Petitioner. This intimation was duly given. Thereafter, as required by paragraph 2.1 of the said Office Memorandum, the recommendation made by the DPC had to be necessarily kept in a sealed cover. This procedure was followed by the DPC. No fault can, therefore, be found with the DPC and the Respondent in adopting the procedure laid down in the Office Memorandum dated 14th September, 1992. Under these circumstances, learned counsel for the Respondent is quite right in relying upon the provisions of paragraph 2.2 and 3 of the Office Memorandum dated 14th September, 1992 and contending that the sealed cover containing the recommendation of the DPC cannot until the Petitioner is exonerated in the second enquiry also.

24. Reliance by learned counsel for the Petitioner on Bank of India and Anr. v. Degla Suryanarayana, is misplaced. Paragraph 14 of the Report referred to by learned counsel is self- explanatory. This read as follows:

"14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well-established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are cover (see Union of India v. K.V. Jankiraman SCC at PP. 114-115: AIR at p. 2013). As on 1.1.1986 the only proceedings pending against the respondent were the criminal proceedings which ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3.12.1991. In the year 1986-87 which the respondent became due for promotion and when the Promotion Committee held its proceedings, there were so departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to which the respondent was found entitled as on 1.1.1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1.1.1986."

25. It may be mentioned that in Suryanarayanan, criminal proceedings terminated in his favor on 17th August, 1988 and no proceedings were pending against him between 1988 and 1991, nor was he under suspension or otherwise disentitled form being promoted. Clearly, the facts of Survanarayana are distinguishable from those of the present case.

26. Since the Respondent has not faulted but has proceeded in accordance with law, no relief can be granted to the Petitioner. The writ petition deserves to be dismissed.

27. One disturbing feature of this case is the gross concealment of facts by the Petitioner. He has completely blanked out the second enquiry against him and his suspension prior to the initiation of the second enquiry. The writ petition has been prepared in such a manner as to suggest that he is being victimized by an insensitive employer. This is not so. The Respondent has acted within the bounds of law and no fault can be found with the Respondent in this regard. On the other hand, it seems to me that if the Petitioner had disclosed all facts in the first instance, it may be that the learned Single Judge then dealing with the matter may not have even have issued notice. This is difficult to say one way or the other. Nevertheless, there can be no doubt that the Petitioner is guilty of concealment of material and relevant facts, which may have had an effect on the proceedings in its initial stages. Such a material concealment of facts is disturbing and ought not to be countenanced at any stage.

28. Consequently, while dismissing the writ petition, I impose costs of Rs. 5,000/- on the Petitioner which may be recovered by the Respondent from his salary.