Delhi High Court
A V Prem Nath vs Uoi And Ors on 25 May, 2023
Neutral Citation Number: 2023:DHC:3661-DB
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgement pronounced on: 25.05.2023
+ W.P.(C) 6856/2021
A. V. PREM NATH ..... Petitioner
Through: Mr M K Bhardwaj, Advocate
Versus
UOI AND ORS ..... Respondents
Through : Mr Ripudaman Bhardwaj, CGSC for R-1 &
2/UOI.
Mrs Avnish Ahlawat, Standing Counsel
with Mrs Tania Ahlawat, Mr
Nitesh Kumar Singh and Ms Palak
Rohmetra, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
TALWANT SINGH, J.:
1. The petitioner has filed this petition challenging the order dated
07.01.2021 passed in OA No. 2224/2020 by Principal Bench, Central
Administrative Tribunal (CAT), (hereinafter referred to 'the Tribunal'), New
Delhi.
1.1 In brief, it is mentioned that the petitioner was inducted to the Entry
Grade of Civil Services Examination (DANICS) Examination, 1996
conducted by UPSC. On completion of 8 years of approved service, the
petitioner became entitled for Selection Grade but he was granted the same
on adhoc basis along with his batchmates. On completion of requisite
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service period, his name was considered for grant of JAG-II along with his
batchmates; however, his batchmates were granted JAG-II scale vide
notification dated 29.02.2012 but petitioner was not granted the same.
1.2 Feeling aggrieved, he submitted representations to the Cadre
Controlling Authority (CCA) and he personally met all the concerned higher
officials seeking redressal of his grievances but to no avail.
1.3 It is also mentioned that an FIR was registered way back in the year
2002 on the basis of some anonymous/pseudonymous complaint, which
remained at investigation stage. No material was found against the
petitioner and closure report was finalised in the year 2014. Consequently,
no charge-sheet was filed. The complaint filed anonymously or under
pseudonymous names ought not to have been considered; however, the FIR
was registered on the complaint in violation of the guidelines of the CVC
and the petitioner was falsely implicated in the said case. Inordinate delay
of more than 18 years from the date of registration of the FIR has caused
grave prejudice and stigma to the petitioner.
1.4 The petitioner's case for promotion was kept pending without any
justification under the law and his batchmates were granted JAG-I scale on
13.01.2016 but his case was ignored without any justification. The
petitioner again sent representations to the Cadre Controlling Authority. The
Under Secretary of Union of India stated that Delhi Government is
responsible for delaying the promotion of the petitioner. He sent more than
20 representations; however, vide letter dated 22.11.2019, a strange stand
was taken by Delhi Government that petitioner should not have sent a
representation directly to respondent no.2 and to his Cadre Controlling
Authority. The petitioner filed a detailed representation to Delhi
Government on 06.08.2020; the same was not considered and no reasons
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have been given till date.
1.5 The sanction to prosecute the petitioner in the criminal case, granted
in 2011, remained inconsequential as the same was not acted upon for want
of any material against him but surprisingly again in 2019, for the second
time, the prosecution sanction was granted in the same case, without any
justification. Closure report was prepared long ago, so, there was no
justification to issue sanction for the second time in the year 2019.
1.6 The petitioner received a letter dated 17.07.2020 from Govt. of NCT
of Delhi and letter dated 26.06.2020 from Govt. of India informing that the
petitioner is found eligible for his promotion to the Selection Grade against
regular vacancies pertaining to the year 2020 but even the said promotion
was not granted to him.
1.7 Under these circumstances, the petitioner filed OA No. 1407/2020
before CAT, which was disposed of by Tribunal vide order dated
29.09.2020, with directions to respondents to pass order on representation
dated 06.08.2020 seeking his promotion to JAG-I and JAG-II (DANICS)
within a period of six weeks. On 18.11.2020, the Delhi Government was
asked to send Integrity Certificate along with vigilance clearance. All of a
sudden on 23.11.2020, the respondents rejected the representation of the
petitioner by stating that case of the petitioner for promotion was considered
and the outcome has been kept in a 'sealed cover' due to pending criminal
case, which was registered long ago and no further development has taken
place till date.
1.8 As per the petitioner, the said order is in clear violation of DOP&T
OM dated 14.09.1992, 25.10.2004 and 02.11.2012 where it was explained
that the 'sealed cover' procedure is resorted to only when a government
servant is suspended or he is facing disciplinary proceedings or criminal
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prosecution. The criminal prosecution can be said to be pending when the
police has filed a report under Section 173 Cr.P.C. before the competent
Court of Law and there is application of mind by the said court. The
petitioner was not facing any disability when his case was considered for
Selection Grade on 01.08.2011 and similarly when the case of the
batchmates of the petitioner was considered for grant of JAG-II of the grade.
The sanction of criminal prosecution was granted on 31.10.2019 and the
challan has been filed after order of the Tribunal. As such, the petitioner
was not facing any disability on the date of DPC when promotion order of
his junior, were passed. This fact was apprised to the CAT during hearing
of OA No. 2224/2020. Certain judgments were also relied upon by the
petitioner. The said OA was finally heard on 07.01.2021 and it was
dismissed on the said date. The petitioner had referred to many judgments
and DOP&T instructions on the subject but the Tribunal has ignored the
same while dismissing the OA on 07.01.2021. Six Employees junior to the
petitioner were promoted on 05.07.2021.
1.9 The grounds on which the present petition has been filed are as
follows:-
(i) CAT has made incorrect observation regarding pendency of
criminal case against the petitioner; case of petitioner before the
Tribunal was regarding delay in promotion to the Selection
Grade on regular basis and grant of promotion to JAG-II and
JAG-I at par with his juniors and batchmates. The plea of the
respondents was that since the petitioner was facing the
criminal case in case FIR No. 34/2002, so he could not be
granted the said promotions. The criminal case was registered
Signature Not Verified on 12.07.2002 on false allegations and closure report was
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approved in the year 2014, so the petitioner was not facing any
criminal case from 2002 till consideration of his claim for
promotion to Selection Grade, JAG-II and JAG-I;
(ii) the Tribunal failed to consider that the impugned order dated
23.11.2020 was passed without application of mind and by
misinterpreting the Govt. of India instructions.
(iii) The respondents have tried to justify their action by referring to
OM dated 14.09.1992 and 25.10.2014 and the 'sealed cover'
procedure which is to be resorted to only in cases where (i)
government servant is under suspension; (ii) the charge-sheet
has already been filed and (iii) disciplinary proceedings are
pending. The petitioner was not facing any of the above
situations; and
(iv) The Tribunal has acted contrary to the law laid down by
Hon'ble the Supreme Court of India in the matter of "Union of
India vs. K.V. Jankiraman" 1991 AIR 2010;
1.10 There are many other minor grounds, which have been raised by the
petitioner in the writ petition.
2. Counter affidavit was filed by respondent no.1 and 2 to the writ
petition, denying all the allegations made in the writ petition. The petitioner
has filed rejoinder to the same reiterating the contents of the writ petition.
2.1 All the parties have also filed written submissions.
3. We have heard counsel for the parties and our considered view is as
under:-
(i) The petitioner has prepared a date-wise chart indicating the
dates on which DPC were held and promotion orders were issued in
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respect of batch-mates and the status of the criminal case against him.
The said chart is reproduced hereunder:-
Name of Date of Date of Status at
the Post/ DPC Promotion the
Grade order material
time w.r.t
DE/
Suspension/
Crl. Prosc.
Selection November 13.11.2006 NA
Grade 2006
JAG-II November 23.11.2012 NA
JAG-I January 13.01.2016 NA
3.1 The genesis of the case is that FIR bearing No. 34/2002 was
registered on 12.07.2002 under Section 13 of Prevention of Corruption Act
(PoCA) read with Section 214/420/468/471/120B IPC against the present
petitioner and others. The allegation was that the petitioner had passed ante-
dated orders in the matter of a land dispute between Gram Sabha and an
individual and during inquiry, the said allegation was substantiated; the
sanction to prosecute the petition was accorded on 19.01.2011 but till then
the Anti-Corruption Branch (ACB) had not completed the investigation and
more evidence was being collected and a fresh sanction of prosecution was
sought vide letter dated 09.05.2019 and the said sanction was again granted
on 31.10.2019.
3.2 Presently, the charge-sheet in the said FIR stands filed and is pending
before the Competent Court. The respondents admit that the petitioner was
eligible for promotion to the Selection Grade against the vacancy years 2003
to 2007 and the DPC was held on 01.08.2011. Since sanction for
prosecution had already been accorded vide order dated 19.01.2011, so the
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petitioner was never considered clear from the vigilance angle on the date of
the said DPC and the order of DPC was kept in 'sealed cover' in compliance
of the CAT's order dated 29.09.2020. The respondents have submitted that
they have again examined the matter and since criminal proceedings were
due against the petitioner, so, it was not possible to grant him promotion to
the higher grades and thus his case was kept in a 'sealed cover' and request
was rejected by respondent no.1 and 2 vide order dated 23.11.2020.
3.3 As per the respondents, the case of the petitioner clearly falls under
DoPT OMs dated 14.09.1992, 25.10.2004 and 02.11.2012, wherein it was
held that vigilance clearance for promotion may be denied in the cases
where:
(i) Government servants is under suspension;
(ii) Government servants in respect of whom a charge sheet has
been issued and disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a
criminal charge is pending
So, he cannot be promoted till criminal prosecution is pending.
3.4 It has been reiterated that the sanction for prosecution was issued by
the respondents on 19.01.2011 and DPC for promotion was held on
01.08.2011; so, the petitioner was not clear from vigilance angle. In view of
the above DoP& T circulars, the ACB, GNCTD had never filed a closure
report in the concerned court.
3.5 As per respondent no.3, the issue before this Court is whether the
DPC result could have been kept in a 'sealed cover' in 2011 when DPC
met?
3.6 The petitioner and respondents have relied upon certain judgments.
The respondent no.3 has relied upon judgments titled:-
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(i) Delhi Development Authority vs. H.C. Khurana, 1993 (3) SCC
196 wherein the Supreme Court had held that in a case where the
disciplinary proceedings are initiated the sealed cover guidelines are
attracted.
(ii) The next authority relied upon by respondent no.3 is Union of
India vs. Kewal Kumar, 1993 (3) SCC 204 , wherein it was held that
where the CBI had recorded the FIR and had sent the same to the
higher authorities for taking action and the competent authority has
taken a decision to initiate disciplinary proceedings, so in that sealed
cover procedure is to be followed.
(iii) In Union of India & Ors. vs. V. Appalla Raju, (2017) High
Court Cases (Del.) 293 the Court has come to the conclusion that
sealed cover procedure can be adopted if the prosecution for criminal
charge is pending against Government servant.
3.7 On the other hand, the petitioner has relied upon the following
judgments:-
(i) UOI vs. V Janakiraman & Ors., (1993 ) SCC LRS 387;
(ii) UOI & Ors. Vs. Sangram Keshari Nayak, (2007) 6 SCC 704;
(iii) UOI & Ors. Vs. Anil Kumar Sarkar, judgment dated
15.03.2013 Civil Appeal No. 2537/2013
3.8 As per the counsel for the petitioner, the Hon'ble Supreme Court in
the judgment of Sangram Keshari Nayak (supra) has referred to its earlier
judgments in the matter of Delhi Development Authority vs. H.C. Khurana
(supra) and Union of India vs. Kewal Kumar (supra) and both these
judgments were distinguished by holding that one of the three conditions, as
mentioned in OM dated 14.09.1992 must be in existence at the relevant
time.
Signature Not Verified This Court has also followed the aforesaid settled legal position while
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deciding W.P.(C) 4684/2011 titled UOI vs. B.S. Bhola, on 07.11.2012 and
while passing judgment dated 10.04.2018 in W.P.(C) 3500/2018 titled
Union of India vs. Ashok Kumar.
4. We have gone through the above judgments. Sangram Keshari Nayak
(supra), was a case of an officer of Indian Railway Traffic Services, who
was recruited on 01.02.1982; he was promoted to the cadre of JAG and later
on to the Selection Grade on 01.07.1994. He was eligible to the post of
Senior Administrative Grade and DPC was formed and the name of the
respondent was included in the same but on the premise that vigilance case
was pending against him, sealed cover procedure was adopted. The officer
junior to him was promoted on 27.08.1999; Department proceedings against
Govt. servant was initiated on 24.09.1999 by issuance of a charge-sheet. He
approached the CAT for directions to the Department to promote him from
the date when his junior was promoted and the said petition was allowed on
19.08.2003. A writ petition filed by the appellants/Department was
dismissed by the High Court and the said decision was challenged before the
Hon'ble Supreme Court. The issue which was taken up and the question,
when a "Government servant is under cloud", at the time of his
consideration was decided, that he can be so called if he is fulfilling any of
the three conditions and it was brought to the notice of the Departmental
Promotion Committee. The conditions are:-
(i) Government servants under suspension; or
(ii) Government servants in respect of whom a charge-sheet has
been issued and the disciplinary proceedings are pending; or
(iii) Government servants in respect of whom prosecution for a
criminal charge is pending.
4.1
Signature Not Verified In Sangram Keshari Nayak (supra), the Court has also considered its
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earlier judgment in Delhi Development Authority vs. H.C. Khurana (supra)
and Union of India vs. Kewal Kumar (supra) and has observed as under:-
"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 self same reasons, the decision of this Court in Kewal
Kumar is also not attracted".
4.2 The relevant circulars (OMs) in this regard are dated 10.04.1989,
14.09.1992, 25.10.2004 and 02.11.2012. The circular dated 10.04.1989
was holding the field till the circular dated 14.09.1992 was issued by
DoPT. The relevant portion of OM dated 10.04.1989 are as follows:-
"11.1 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 sanction for prosecution has
been issued or a decision has been taken to accord sanction
for prosecution; and
(iv) Government servants against whom an investigation or
serious allegations of corruption, bribery or similar grave
misconduct is in progress either by the C.B.I or any other
agency, departmental or otherwise.
(Emphasis supplied)
4.3 However, while issuing the circular dated 14.09.1992, these
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conditions were modified and condition No. (iv) was eliminated. The
conditions mentioned in para 2 of OM dated 14.09.1992 and relevant
para 7 are reproduced hereunder:-
"2. At the time of consideration of the cases of Government
servant for promotion details of Government servant in the
consideration zone for promotion failing under the following
category 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 criminal charge is pending"
xxx
'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
recommendations of the DPC are received but before he is actually
promoted, will be considered as if his case had been placed in sealed
cover by the DPC. He shall not be promoted he is completely
exonerated of the charges against him and the provisions contained
in this O.M. will be applicable in his case also.'
4.4 A clarification was issued in 2004. The relevant portion of OM
dated 25.10.2004 is as follows:-
"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.
Janakiraman etc. (AIR 1991 SC 2010), 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 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".
4.5 Further clarification as to when a criminal charge is stated to be
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pending, has been made on 02.11.2012. The relevant portion of OM
dated 02.11.2012 is as follows:-
"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 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".
(Emphasis supplied)
Xxx
"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".
(Emphasis supplied)
5. It is admitted fact that FIR bearing No. 34/2002 was registered by
Anti-Corruption Branch against the present petitioner on 12.07.2002 under
Section 13 of Prevention of Corruption Act read with Section
214/420/468/471/120-B IPC. It is also admitted case of both the parties that
the initial sanction for prosecution was granted on 19.01.2011 and thereafter
a fresh sanction for prosecution was granted by Ministry of Home Affairs on
31.10.2019. It has been informed to the Court that the criminal case in
pursuance to registration of FIR No. 34/2002 is still pending at the stage of
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prosecution evidence, after framing of charges.
5.1 It is admitted case that although FIR was registered in the year 2002,
initial sanction was granted in the year on 19.01.2011 and again sanction
was granted on 31.10.2019 but the police report after investigation, i.e., the
charge-sheet, was filed thereafter.
6. In view of the above, it is clear that from the year 2002 when the FIR
was registered till 2020, when the charge-sheet was filed, it cannot be said
that there were any criminal proceedings pending against the present
petitioner as the matter was still pending under investigation. None of the
three conditions mentioned in OM dated 14.09.1992, i.e. (i) the Government
servant being under suspension; (ii) a charge-sheet has been issued and
disciplinary proceedings are pending or (iii) the criminal charge is pending
are satisfied in the present case. The OM dated 02.11.2012 is clear that the
judicial proceedings shall be considered as being instituted when the police
report under Section 173 Cr.P.C. is filed and cognizance is taken by the
learned Magistrate under Section 190 Cr.P.C. Section 190 Cr.P.C. is
reproduced hereunder:-
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class specially
empowered in this behalf under sub- section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge, that
such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub- section (1) of
such offences as are within his competence to inquire into or
try".
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6.1 The OM dated 02.11.2012 has also made it clear that if in the
considered view of the Government, charges against the government servant
are serious and the government does not wish to promote him, it is open to
the Government to suspend such officer and expedite the disciplinary
proceedings. In the present case, it is nowhere pleaded by the parties that the
petitioner was under suspension during the period when DPCs were held.
Hence, in our considered view, neither of the three conditions mentioned in
OM dated 14.09.1992 in para 2 are fulfilled as it has also not brought to our
notice that the petitioner was charge-sheeted and disciplinary proceedings
were pending against him at any point of time when DPCs were held and it
is an admitted fact that a criminal charge -sheet was filed in 2020 only.
7. In view of the above, the respondent had no occasion not to consider
the case of the petitioner for promotion for grant of Selection Grade (Regular
Basis) JAG-I and JAG-II at par with his batchmates and juniors and the
'sealed cover'/deemed sealed cover procedure adopted in case of petitioner
is not legal.
7.1 We hereby direct that the said sealed covers be opened and if found
suitable, the petitioner be granted Selection Grade, JAG-II and JAG-I scales
on regular basis from the dates when his batchmates and juniors were
promoted. Arrears of pay with 9% per annum interest be released to him
along with other consequential benefits within 4 weeks from today.
7.2 It is made clear that the respondents are within their legal right
regarding resorting to 'sealed cover' procedure after the date, when the
charge-sheet was filed in case FIR 34/2002, till the final outcome of the said
criminal proceedings.
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8. The writ petition is partly allowed and disposed of with these
directions.
TALWANT SINGH
(JUDGE)
RAJIV SHAKDHER
(JUDGE)
MAY 25, 2023/nk
Signature Not Verified
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KUMARI SHARMA
Signing Date:29.05.2023W.P.(C)
