Delhi High Court
Neeraj Kumar Pandey vs Union Of India And Ors on 28 January, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~79
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28.01.2025
+ W.P.(C) 17926/2024
NEERAJ KUMAR PANDEY .....Petitioner
Through: Mr.Ankur Chhibber,
Mr.Anshuman Mehrotra,
Mr.Nikunj Arora, Mr.Prahil
Sharma, Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr.Mukul Singh, CGSC,
Mr.Gokul Sharma, GP, Ms.Ira
Singh, Mr.Aryan Dhaka, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed by the petitioner, praying for
quashing of the Signal dated 05.12.2024 whereby the respondents
have communicated to the petitioner that he has been declared „unfit‟
for promotion to the post of Deputy Inspector General (in short,
„DIG‟) by the Departmental Promotional Committee (in short, „DPC‟)
held on 28.03.2023.
2. It is the case of the petitioner that the petitioner was promoted
to the post of Commandant in the Central Reserve Police Force (in
short, „CRPF‟) on 27.07.2010. In the year 2023, there were 18
vacancies for the post of DIG that were likely to be created.
Accordingly, the respondents, vide Signal dated 14.02.2023, called for
the drawing of a panel for the promotion from the post of
Commandants to the rank of DIG for the vacancy year 2023. The
petitioner was at Sl. No.13 of the gradation list of Commandant as of
01.01.2023, therefore, his name was also included in the said list.
3. Before the DPC could consider the case of the petitioner, an
FIR under Section 13(2) read with Section 13(1)(e)(b) of the
Prevention of Corruption Act, 1988 was lodged against the petitioner
by the Central Bureau of Investigation (in short, „CBI‟) on
16.03.2023.
4. The DPC was convened on 28.03.2023 and placed its
recommendations with respect to the petitioner in a sealed cover.
5. Aggrieved of the same, the petitioner approached this Court by
way of a Writ Petition, being W.P.(C). 15719/2023, titled Neeraj
Kumar Pandey v. Union of India & Ors., claiming therein that the
conditions for resorting to the sealed cover procedure had not been
satisfied in the present case, as no departmental proceedings had been
initiated against the petitioner, nor any charge-sheet in the criminal
case filed, and the petitioner had also not been placed under
suspension.
6. Taking note of the above submission, which had not been
denied by the respondents, this Court by its Judgment dated
11.09.2024 passed in the abovementioned writ petition, held that the
resort to the sealed cover procedure was contrary to the Office
Memorandums dated 14.09.1992 and 02.11.1992, as well as the
Judgment of the Supreme Court in Union of India & Ors. v. K.V.
Janakiraman, (1991) 4 SCC 109. This Court, therefore, allowed the
writ petition by directing the respondents to open the sealed cover
containing the recommendations made by the DPC qua the petitioner.
7. Pursuant to the above directions, the sealed cover containing the
recommendation of the DPC was opened on 03.12.2024. However, the
petitioner was found to have been declared „unfit‟ for promotion by
the DPC on the ground that the FIR mentioned hereinabove had been
registered by the CBI against him for possession of the assets of
Rs.5,61,94,065/- which is disproportionate to his known source of
income. The DPC records that considering the general service record
and the grave nature of charges in the above FIR, the petitioner was
deemed „unfit‟ for promotion to the rank of DIG (GD) in the CRPF.
The DPC notes that in terms of DoP&T Guidelines, it enjoys full
discretion to devise its own method and procedures for the objective
assessment of the suitability of the candidates who are to be
considered by them, including those officers on whom penalties have
been imposed.
8. The petitioner, not knowing the reason why he has been
declared „unfit‟ for promotion, approached this Court by way of the
present petition.
9. This Court, by its Order dated 24.12.2024, took note of the
submissions of the learned counsel for the petitioner that the petitioner
had consistently been graded as "very good" and "excellent" in the
APARs and, has been in the Shape-I Medical Category, passed his
promotional course, including his Duty Battalion Course, and that
there was no reason why he has been declared „unfit‟ for promotion.
This Court, therefore, called upon the respondents to produce the
record of the concerned DPC.
10. These records were duly produced before us by the respondents
on 27.01.2025, wherein the abovementioned observation of the DPC
for declaring the petitioner „unfit‟ for promotion was discovered and
communicated to the learned counsel for the petitioner.
11. The learned counsels for the parties then prayed for time to
make submissions on the challenge of the petitioner to the decision of
the DPC.
12. Today, the learned counsel for the petitioner has placed reliance
on the Office Memorandum No.22012/1/99-Estt (D) dated
25.11.2004, to submit that it is only in terms of the Office
Memorandum dated 14.09.1992 and the Judgment of the Supreme
Court in Union of India vs. K.V. Janakiraman (supra), and where the
conditions mentioned therein are applicable, that the vigilance
clearance for the candidates being considered for promotion can be
withheld, and the DPC can be informed that a sealed cover procedure
has to be followed for the candidates concerned. He submits that the
underlying details of such cases should not be informed to the DPC,
lest it would colour the judgment while considering the case of the
candidates.
13. He submits that in the present case, the Vigilance Department
had granted the vigilance clearance to the petitioner for being
considered for promotion as none of the conditions mentioned in the
OM dated 14.09.1992 had arisen. He submits that, therefore, the DPC
could not have considered the underlying allegations against the
petitioner that had formed the basis of the registration of the FIR.
14. He submits that in any case, the CBI has since filed a Closure
Report on 07.12.2024 in connection with the said FIR.
15. He also placed reliance on the Judgment of this Court in
Hemant Kumar Sahu v. Union of India & Ors. 2019:DHC:2115-DB,
to submit that although the DPC can devise its own procedure, it
cannot base its decision on extraneous considerations. He submits that
once the OM dated 25.10.2004 clearly states that the underlying
allegations forming part of the FIR cannot be disclosed to the DPC,
there was no justification for the DPC to consider the same while
declaring the petitioner unfit for promotion.
16. On the other hand, the learned counsel for the respondents
submits and reiterates that the DPC has full discretion to devise its
own method and procedure for the objective assessment of the
suitability of the candidates. He submits that in the present case,
though the vigilance clearance had been given to the petitioner, the
DPC was not debarred from considering the underlying allegation on
which the FIR has been registered against the petitioner. Placing
reliance on the Judgment of the Supreme Court in Union of India &
Anr. v. S.K. Goel, (2007) 14 SCC 641, he submits that, the DPC
having considered the relevant factors and having full discretion to
devise its own method and procedure for the objective assessment of
the suitability of the candidates, the decision of the DPC cannot be
faulted.
17. We have considered the submissions of the learned counsels for
the parties.
18. From the above narration of facts, it would be evident that the
petitioner had been granted vigilance clearance for being considered
by the DPC, convened for filling up the post of DIG (GD) in the
CRPF for the anticipated vacancies for the year 2023. In its meeting
held on 28.03.2023, the DPC decided to keep its recommendation
with respect to the petitioner in a sealed cover. Pursuant to the Order
dated 11.09.2024, passed by this Court in W.P.(C) 15719/2023, the
said sealed cover was directed to be opened. This Court further
directed as under:
"11. For the aforesaid reasons, we allow the
writ petition by directing the respondents to
open, within six weeks, the sealed cover
containing the recommendations made by the
DPC qua the petitioner in April 2013 with
further directions that in case he is found fit
for promotion to the post of DIG, he be
granted promotion with all consequential
benefits on notional basis from the date his
batchmates were granted the said promotion.
We however make it clear that the petitioner
will be entitled to the pay of a DIG only from
the date he is actually promoted to the said
post."
19. In compliance with the said order, the sealed cover of the
petitioner was opened on 03.12.2024, and he was declared unfit for
promotion. The DPC, in its recommendations, has observed as under:
"2. As per DoP&T guidelines, the DPCs
enjoy full discretion to devise their own
methods and procedure for objective
assessment of the suitability of candidates who
are to be considered by them, including those
officers on whom penalty has been imposed.
3. After going through the record of
service of Shri Neeraj Kumar Pandey,
Commandant (IRLA-4009), the DPC has
observed that a FIR No. RC0062023A0008
dated 16/03/2023 has been registered by CBI,
ACB Lucknow against him in connection with
possession of assets of Rs.5,61,94,065/-, which
is disproportionate to his known source of
income. Therefore, considering general
service record and grave nature of charge in
above FIR, the DPC graded Shri Neeraj
Kumar Pandey, Commandant (IRLA-4009)
as „UNFIT' for promotion to the rank of DIG
(GD) in CRPF,"
20. At the outset, we agree with the submission of the learned
counsel for the respondents that an employee has no right to
promotion but only a right to be considered for promotion. Further,
the DPC enjoys full discretion to devise its own method for the
objective assessment of the comparative merit of eligible officers
[refer S.K. Goel (supra)]. It is also well settled that the High Court,
under Article 226 of the Constitution of India, cannot sit in an appeal
over the assessment made by the DPC, however, if the assessment
made by the DPC is perverse, or not based on the record, or influenced
by extraneous circumstances, it is always open to the High Court to
remit the matter back to the DPC for reconsideration.
21. In the present case, the DPC, in declaring the petitioner unfit for
promotion, has placed reliance on the FIR registered against him. The
learned counsel for the petitioner, placing reliance on the Office
Memorandum dated 25.10.2004, has submitted that even where the
vigilance clearance is rejected to a candidate (though, in the present
case, the petitioner had been granted the vigilance clearance) on the
ground of the pendency of a disciplinary case or criminal prosecution
proceedings, only a bare statement to this regard is to be
communicated to the DPC and no other details regarding the pending
inquiry or the nature of charges, etc. are to be furnished to the DPC,
lest these details weigh with the DPC in making its recommendations.
We reproduce the relevant extracts from the Office Memorandum
dated 25.10.2004 as under:
"OFFICE MEMORANDUM
Subject:- Cases of persons whose conduct is
under investigation or against whom a
charge sheet is pending -
consideration for promotion - clarification
regarding.
The undersigned is directed to refer to
the Department of Personnel and Training
Office Memorandum No.22011/4/91-Estt-A
dated 14th September, 1992 (copy enclosed)
which has been issued pursuant to the
judgment of the Hon'ble Supreme Court in the
case of Union of India vs. K.V. Janakiraman
etc. (AIR 1991 SC 2010), and is in
supersession of all previous instructions on the
subject, and to say that para 2.1 of the said
Office Memorandum provides that the DPC
shall assess the suitability of the Government
servants coming within the purview of the
circumstances mentioned in para 2 of the
Office Memorandum, along with other eligible
candidates, without taking into consideration
the disciplinary case/criminal prosecution
pending. Therefore, it is made clear that only a
bare statement that case of an employee in the
zone of consideration/extended zone of
consideration is covered by any of the three
situations indicated in para-2 of the said
Office Memorandum is to be furnished to the
DPC to enable it to place its recommendations
in the sealed cover. No other details about the
pending inquiry or the nature of charges etc.
are to be furnished to the DPC lest these
details weigh with the DPC in making its
recommendations, which are to be placed in
the sealed cover.
2. Considerable doubts also persist about
the furnishing of the vigilance clearance and
integrity certificate to the DPC. It is clarified
that the DPC is required to consider the cases
of all persons who are otherwise eligible in
terms of the Recruitment Rules as on the
relevant crucial date and are in the zone of
consideration. If, however, case of an
employee in the zone of consideration is
covered by any of the three situations, only
this fact is to be furnished to the DPC so that
the recommendations could be placed in
sealed cover. Where none of the three
situations has arisen, a simple vigilance
clearance would need to be furnished.
Vigilance clearance/status would have no
other significance and would not be a factor in
deciding the fitness of the officer for
promotion on merit.
3. It is also clarified that there is no
requirement of furnishing a separate integrity
certificate to the DPC. In terms of the
judgment of the Hon'ble Supreme Court in the
case of Union of India vs. K.V. Janakiraman
etc. (AIR 1991 SC 2010), no promotion can be
withheld merely on the basis and of suspicion
or doubt or where the matter is under
preliminary investigation has not reached the
stage of issue of charge sheet etc. If in the
matter of corruption/dereliction of duty etc.,
there is a serious complaint and the matter is
still under investigation of CBI or otherwise,
the Government is within its right to suspend
the official. In that case, the officer's case for
promotion would automatically be required to
be placed in the sealed cover.
4. If the conditions indicated in para-2 of
DoPT Office Memorandum dated 14th
September, 1992, arise only after the DPC has
made its recommendations and therefore, the
recommendations could not be placed in the
sealed cover, para-7 of the said Office
Memorandum provides that the
recommendations of the DPC shall be deemed
to have been placed in the sealed cover and he
shall not be promoted until he is exonerated of
the charges. Therefore, after the
recommendations of DPC have been approved
by the competent authority, it is necessary to
again seek the status position from the
concerned vigilance division before issuing
promotion order in respect of any officer
included in the approved panel of names to
ensure that there is no hindrance in issuing the
promotion order in respect of the concerned
officer."
22. A reading of the above Office Memorandum would clearly
show that even where the vigilance clearance is withheld, the DPC has
to assess the suitability of the government servant along with other
eligible candidates „without taking into consideration the disciplinary
case/criminal prosecution proceedings‟. These proceedings are
relevant to the DPC only for the purpose of placing its
recommendations regarding such a candidate in a sealed cover. The
Office Memorandum expressly prohibits the details about the pending
inquiry or the nature of charges to be furnished to the DPC, lest these
details weigh with the DPC in making its recommendations, which are
to be placed in the sealed cover.
23. The reasons for the above instructions are not far to seek. In
case the candidate is later found guilty in the disciplinary inquiry or in
the criminal proceedings, the consequences thereof on the promotional
aspect of such candidate shall follow in accordance with the law.
However, if the candidate is exonerated in such departmental
proceedings and/or criminal proceedings, such candidate cannot be
denied promotion only on the ground that such departmental
proceedings or criminal proceedings were pending against him. The
case of the candidate is, therefore, to be considered remaining
uninfluenced by the pendency of such departmental proceedings
and/or the criminal proceedings. If the details of the departmental
proceedings or the criminal proceedings are allowed to influence the
decision of the DPC, it would amount to the DPC prejudging and
punishing the candidate without any inquiry or opportunity of hearing;
it would be a decision taken by the DPC in violation of the principles
of natural justice with far reaching civil consequences on the
candidate. The same would, therefore, vitiate the decision of the DPC,
making it unsustainable in law.
24. The consequence of an FIR being registered against the
candidate for possessing disproportionate assets may also be used to
place such candidate in the „Agreed List‟, which may entail denial of
the vigilance clearance or denial of placement of such candidate in
sensitive/corruption-prone areas, however, this also cannot influence
the DPC while considering the case of the candidate on its own merit
while remaining uninfluenced by such proceedings.
25. In K.V. Janakiraman (supra), the Supreme Court cautioned
that, in many instances, preliminary investigations or FIRs do not even
result in the issuance of a charge sheet or charge memo. The employee
therefore, cannot be condemned only on basis of issuance of a charge-
sheet or a charge memo. However, keeping in view the seriousness of
the charge, the employer has the power to suspend the employee under
the relevant rules, which would result in resort to the sealed cover
procedure. In such a case, the employee would not get a promotion
unless he/she is exonerated in such inquiry or criminal proceedings.
This would bring about a balance in protecting the interest of the
employer while at the same time ensuring that an employee is not
condemned without substance. We may quote from the Judgment of
K.V. Janakiraman (supra) as under:
"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: (ATC p. 196, para 39)
"(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."
26. In the facts of the present case, as noted hereinabove, the
vigilance clearance had been granted to the petitioner for being
considered for promotion. Though the petitioner had been placed in
the "Agreed List", the allegations forming the basis of the FIR against
him, should not have been brought to the notice of the DPC, which
should have considered the case of the petitioner on the basis of his
Annual Confidential Reports, medical condition, and other relevant
circumstances. While the DPC could surely have devised its own
procedure for an objective assessment of the comparative merit of
eligible officers, having placed reliance on the allegations on the basis
of which the FIR was registered against the petitioner, it has, taken
note of extraneous circumstances which has clouded its decision. The
same, therefore, cannot be sustained.
27. We may also note that the respondents have admitted that they
have been informed that the CBI has since filed a closure report in the
FIR.
28. In view of the above, the present petition is allowed. The DPC
recommendation dated 28.03.2013 qua the petitioner, is hereby set
aside. The respondents are directed to convene the Review DPC to
assess the suitability of the petitioner for promotion to the post of DIG
in the CRPF in accordance with the law within a period of six weeks
from today.
29. In case the petitioner is declared fit for promotion to the post of
DIG, he shall be granted promotion with all consequential benefits on
a notional basis from the date of his batchmates‟ promotion and placed
one step ahead of his immediate junior. We, however, make it clear
that the petitioner shall be entitled to the pay of the DIG rank only
from the date when he actually assumes the rank, however, the
notional fixation of his pay shall be determined based on the notional
date of his appointment.
30. The petition is disposed of in the above terms. There shall be no
order as to costs.
NAVIN CHAWLA, J
SHALINDER KAUR, J
JANUARY 28, 2025/Arya/sg/DG
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