Delhi High Court
Hemant Kumar Sahu vs Union Of India And Ors. on 15 April, 2019
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10651/2017
HEMANT KUMAR SAHU ..... Petitioner
Through: Mr. Ankur Chhibber with Mr. Bhanu
Gupta, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Dev P. Bhardwaj, CGSC with
Mr. Jatin Teotia, Advocate for UOI.
Mr. Vivek K. Singh, DC Law with
SI Deepak Kumar, CRPF.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA
ORDER
% 15.04.2019
Dr. S. Muralidhar, J.:
1. The Petitioner who is presently holding the rank of 2-I/C in the Central
Reserve Police Force („CRPF‟) is aggrieved by his non-promotion to the
post of Commandant along with his juniors whose cases were considered by
the Departmental Promotional Committee („DPC‟) at its meeting held on
19th May 2017.
2. The facts in brief are set out in the counter-affidavit filed by the
Respondents themselves. It is not in dispute that the aforementioned DPC to
consider the promotion of the Petitioner from the post of 2-I/C to
Commandant was held on 19th May 2017 for the Vacancy Year 2017-18. It
is also not in dispute that the Petitioner was not empanelled in the DPC held
on that date. What is also not in dispute is that major penalty proceedings
were initiated against the Petitioner later on 28th August 2017 and not as of
the date on which the DPC was held i.e. on 19th May 2017.
3. The justification offered in the counter-affidavit is that in connection with
the proposed major penalty proceedings a proposal was forwarded by the
CRPF to the Ministry of Home Affairs (MHA), Government of India, on
13th January 2017. It is further stated that the approval was conveyed by the
MHA on 3rd March 2017 "for referring the case of the Petitioner to CVC for
seeking 1st stage advice for initiating major penalty proceedings against
him". From the counter-affidavit it is clear that the CVC by the office
memorandum (OM) dated 2nd June 2017 advised for initiation of such
proceedings by a note dated 22nd June 2017. The memorandum of articles of
charge was handed over to the Petitioner on 18th July 2017.
4. The above dates are significant because the crucial date for deciding if the
Petitioner‟s case for promotion to the rank of Commandant could have been
withheld as 19th May 2017 when the DPC met. As of that date i.e. 19th May
2017 the charge-sheet/memorandum of charges for the major penalty
proceedings were yet to be served on the Petitioner.
5. The question is whether in anticipation of major penalty proceedings,
Petitioner‟s case for promotion could have been overlooked by the DPC
when it met on 19th May 2017? In Union of India v. K.V.Jankiraman
(1991) 4 SCC 109 the Supreme Court concurred with the view of the Central
Administrative Tribunal that: "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."
6. In the said case it was argued by the Union of India, that where the
charges are serious, it would not be in the interests of the administration to
reward such employee with a promotion. Rejecting the said plea, the
Supreme Court held:
"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/chargesheet. 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."
7. The above decision was reiterated by subsequent judgment in Union of
India v. Anil Kumar Sarkar (2013) 4 SCC 161. In the said decision the
Supreme Court reiterated dictum that mere pendency of preliminary
investigation prior to the stage of actual initiation of departmental
proceedings „will not be sufficient to enable the authorities to adopt the
sealed cover procedure of the judgment‟. It will be noted that in the present
case the sealed cover procedure was not even followed. The Petitioner‟s
case was completely overlooked on the basis that major penalty proceedings
were in the offing.
8. Learned counsel for the Respondents submitted that since the major
penalty proceedings were on grave charges, the Respondents were justified
in overlooking the case of the Petitioner for promotion. He also sought to
place reliance on the decision in Union of India v. S. K. Goel (2007) 14
SCC 641 and in particular the observation therein that: "DPC enjoyed full
discretion to devise its method and procedure for objective assessment of
suitability and merit of the candidate being considered by it. Hence,
interference by High Court is not called for.'
9. The above observations in S.K. Goel were in an entirely different context.
The factual matrix in the case was as under:
"In the instant case, respondent No.1 had received no adverse
remarks and had rather been graded at the level of the
prescribed bench mark of 'above average', therefore, as rightly
pointed out by learned Additional Solicitor General, there was
neither any onus nor requirement upon the appellant to have
communicated the ACR entry to respondent No.1."
10. In the above context, the issue that arose for determination there was, in
the words of the Supreme Court as under:
"The only question that arises for consideration in the instant
case is as to whether the High Court has erred in its
failure/omission to take into consideration the government
instructions for regulating recording of ACR which provide for
only communication of adverse remarks in the ACRs."
11. Clearly, therefore, the question that arises in the present case did not
arise for consideration in S K. Goel. Therefore, the said decision does not
assist the case of the Respondents. On the other hand, the legal position as
explained in Union of India v. K.V.Jankiraman (supra) is clear. If on the
date of convening of the DPC and considering the case for promotion,
disciplinary proceedings are yet to be initiated against a candidate his
candidature for promotion cannot be overlooked.
12. As far as the Respondents‟ submission that the charges are grave, it is
clarified that they are free to continue the disciplinary proceedings against
the Petitioner notwithstanding that he is directed to be promoted to the next
rank.
13. The Petitioner‟s representation against the non-consideration of his case
for promotion was rejected by an order dated 28th July 2017 of the DIG
(Personal) of the CRPF. A subsequent representation was rejected on 24th
August 2017. The Court accordingly sets aside both the above orders and
directs that the DPC will be convened not later than 30th April 2019 to
consider the case of the Petitioner for promotion to the post of Commandant
as of 19th May 2017 and if found fit to be promoted to that post. The DPC
will consider the case of the Petitioner for promotion without any reference
to the disciplinary proceedings. His seniority in the post of Commandant
shall be fixed appropriately above his juniors who were promoted on 14th
June 2017. Pay fixation shall also be done likewise. The consequential
orders be passed not later than 31st May 2019.
14. The petition is allowed in the above terms with no order as to costs.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 15, 2019
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