[Cites 2, Cited by 0]
Delhi High Court
Dilip Vishwanath Gondnale vs Union Of India And Ors on 18 March, 2026
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 17.02.2026
Judgment pronounced on: 18.03.2026
+ W.P.(C) 569/2019
DILIP VISHWANATH GONDNALE .....Petitioner
Through: Mr. Suresh Chandra Saxena,
Adv.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Jagdish Chandra, CGSC
along with Mr. Surjeet Kumar,
Adv.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
AMIT MAHAJAN, J.
1. Through the present writ petition, the Petitioner has assailed the
correctness of order dated 29.10.2018 (hereafter 'impugned order'),
passed by the learned Central Administrative Tribunal in OA No.
1984/2018. The Petitioner has also sought issuance of directions to the
Respondents to promote the Petitioner to the post of Additional
Director General of Ordnance Factory & Member of the Board with
effect from 01.12.2017 will all consequential benefits.
2. The brief facts of the present case are as follows:
W.P.(C) 569/2019
15:45:14
2.1. The Petitioner was an officer of Indian Ordnance Factory
Service and he was working as Senior General Manager in the Higher
Administrative Grade (HAG). The Petitioner's case was considered
along with that of some of his juniors and seniors for promotion
against six vacancies of HAG+ category in the vacancy year 2017-18.
The Petitioner was found fit for promotion by the DPC, and
subsequently, on 14.06.2017, Appointments Committee of the Cabinet
(ACC) also approved the name of the Petitioner. Despite the same, the
Petitioner was not promoted, due to which, he filed the Original
Application bearing no. 1984/2018 seeking promotion with
consequential benefits.
2.2. In the proceedings, a counter affidavit was filed on behalf of the
Respondents indicating that the Petitioner was not promoted as his
name figured in the 'Agreed List', however, one post was kept vacant
for the Petitioner pending further verification.
2.3. By the impugned order, the learned Tribunal allowed the
Original Application and directed that the recommendations of DPC
and the clearance of ACC shall be implemented unless any of the
factors mentioned in the Office Memorandums dated 14.09.1992 and
21.06.2013 exist.
2.4. Pursuant to the same, the Respondents passed a speaking order
dated 28.11.2018 rejecting the Petitioner's appointment on account of
him figuring in the 'Agreed List' for the years 2017 and 2018 for
alleged irregularities in the Management of Public Fund Accounts of
W.P.(C) 569/2019
15:45:14
Rifle Factory, Ishapore. The rejection order indicates that the
preliminary vigilance investigation revealed that cash books at the
factory remained unaudited since the years 2010-2011 and the
Petitioner had failed to ensure the Cash Drill Procedure from March,
2013 to October, 2015 at the factory. Further, during his surprise
checks, the Petitioner had allegedly overlooked non-availability of
balance sheets, liability statements and bank reconciliation statement.
It was also noted that in the case registered by CBI, responsibility was
attributed on the Petitioner for a multitude of factors, including, him
not doing regular surprise checks or not doing so properly.
2.5. Aggrieved by the implementation of the DPC being made
conditional on the factors prescribed in Office Memorandum dated
21.06.2013, the Petitioner has filed the present Writ Petition.
3. The learned counsel for the Petitioner submitted that although
the original application filed by the Petitioner was allowed, the
Tribunal has erred in allowing the Respondents to deny promotion on
the basis of the factors listed in the prescribed Office Memorandum
dated 21.06.2013, which does not apply to promotions. He further
submitted that the scope of Agreed List remains ambiguous and the
Petitioner cannot be denied the benefits of promotion on the basis of
the same.
4. He submitted that Office Memorandums dated 07.07.2008 and
02.11.2012 make it clear that Office Memorandum dated 14.12.2007,
which pertains to grant of vigilance clearance, does not cover cases of
W.P.(C) 569/2019
15:45:14
promotion. He submitted that the case of promotion would be
governed by Office Memorandums dated 14.09.1992 and 25.10.2004,
which do not provide for denial of promotion to individuals who are
on the Agreed List.
5. He submitted that the factors mentioned in Office
Memorandum dated 21.06.2013, which includes the parameter of
'Agreed List', are contrary to the limited factors stipulated by the
Hon'ble Apex Court in the case of Union of India v. K.V.
Jankiraman : (1991) 4 SCC 109.
6. He further submitted that the Petitioner was not even named in
the FIR registered by CBI, and no action has been taken against the
Petitioner till date in the vigilance enquiries either even though he
retired way back on 31.01.2019.
7. On the other hand, the learned counsel for the Respondents
submitted that the matter was properly considered de novo by the
Competent Authority as directed by the learned Tribunal, however,
the Petitioner has failed to challenge the order dated 28.11.2018 and
has wrongly challenged the clear and unambiguous direction of the
learned Tribunal instead.
8. He submitted that the Office Memorandum dated 21.06.2013
applies to appointment to sensitive posts, which includes appointment
by way of promotion. He submitted that fresh vigilance clearance was
required as the post of Additional Director General/ Member,
Ordnance Factory Board is a selection post and sensitive in nature as
W.P.(C) 569/2019
15:45:14
it involves strategic decision making.
9. He submitted that the vigilance status of the Petitioner at the
relevant time indicated that he had two pending vigilance cases
against him.
10. He contended that one of the cases was in relation to
irregularities in appointment of Shri Ramakat as Sr. DGM in the
Office of Security Printing & Minting Corporation of India Limited in
2006, and the other was in relation to cash books at Rifle Factory,
where the Petitioner served as the General Manager, being unaudited
since the years 2010-11. He submitted that although the Petitioner was
not named in FIR which was registered by CBI in relation to the latter
allegations, the allegations in the same were attributable to the
Petitioner.
11. He submitted that the Agreed List consists of individuals whose
integrity is doubtful and the same is based on a myriad of factors. He
submitted that the Department was not in favour of appointment of the
Petitioner in order to maintain probity in public service.
ANALYSIS
12. The limited question before this Court is whether the
Respondent Authorities are correct in denying promotion to the
Petitioner, despite recommendation from DPC and approval from
ACC, on account of him being placed in the Agreed List at the
relevant time.
W.P.(C) 569/2019
15:45:14
13. Although the original application was allowed by the learned
Tribunal in the present case, however, the promotion was made
contingent on case of the Petitioner not falling under any of the factors
mentioned in the Office Memorandums dated 14.09.1992 and
21.06.2013.
14. Thus, to address the said issue, it is imperative to first take note
of the relevant Office Memorandums, being, Office Memorandum
dated 14.12.2007, as was amended by the subject Office
Memorandum dated 21.06.2013.
15. The relevant portion of Office Memorandum dated 14.12.2007
is as under:
"1. These orders regarding accordance of vigilance clearance to
members of the Central Civil Services/posts shall be applicable
with respect to (a) empanelment (b) any deputation for which
clearance is necessary, (c) appointments to sensitive posts and
assignments to training programmes (except mandatory training).
In all these cases, the vigilance status may be placed before and
considered by the Competent Authority before a decision is taken.
2. The circumstances under which vigilance clearance shall not be
withheld shall be as under:
xxx
c) Vigilance clearance shall not be withheld unless (i) the
officer is under suspension (ii) a chargesheet has been issued
against the officer in a disciplinary proceeding and the
proceeding is pending (iii) orders for instituting disciplinary
proceeding against the officer have been issued by the
Disciplinary Authority provided that the chargesheet is
served within three months from the date of passing such
order (iv) chargesheet has been filed in a Court by the
Investigating Agency in a criminal case and the case is
pending (v) orders for instituting a criminal case against the
officer have been issued by the Disciplinary Authority
W.P.(C) 569/2019
15:45:14
provided that the chargesheet is served within three months
from the date of initiating proceedings (vi) sanction for
investigation or prosecution has been granted by the
Competent Authority in a case under the PC Act or any other
criminal matter (vii) an FIR has been filed or a case
registered by the concerned Department against the officer
provided that the charge sheet is served within three months
from the date of filing/registering the FIR/case and (viii) The
officer is involved in a trap/raid case on charges of
corruption and investigation is pending."
Paragraph 1 of the said Memorandum stipulates the limited
scenarios wherein the same will be applicable while Paragraph 2
provides for the parameters in which vigilance clearance may be
withheld.
16. Para 2(c) of the aforesaid Office Memorandum was
subsequently amended by way of Office Memorandum dated
21.06.2013. The relevant portion of the same is as under:
"Vigilance clearance shall not be withheld unless (i) the officer is
under suspension (ii) the officer is on the Agreed List, provided
that in all such cases the position shall be mandatorily revisited
after a period of one year (iii) a chargesheet has been issued
against the officer in a disciplinary proceeding and the proceeding
is pending (iv) orders for Instituting disciplinary proceeding
against the Officer have been issued by the Disciplinary Authority
provided that the chargesheet is served within three months from
the date of passing such order (v) chargesheet has been filed in a
Court by the investigating Agency in a criminal case and the case
is pending (vi) orders for instituting a criminal case against the
officer have been issued by the Disciplinary Authority provided
that the chargesheet is served within three months from the date of
initiating proceedings (vii) sanction for investigation or
prosecution has been granted by the Competent Authority in a case
under the PC Act or any other criminal matter (viii) an FIR has
been filed or a case registered by the concerned Department
against the officer provided that the chargesheet is served within
three months from the date of filing/ registering the FIR/case (ix)
W.P.(C) 569/2019
15:45:14
the officer is involved in a trap/raid case on charges of corruption
and investigation is pending"
17. Much emphasis has been placed by the Petitioner on the
argument that the said Office Memorandums have no nexus with
promotions to sensitive posts. It is asserted that promotion would
rather be based on Office Memorandums dated 14.09.1992 and
25.10.2004, which encompass the guidelines of the Hon'ble Apex
Court in Union of India v. K.V. Jankiraman (supra). Reliance has
been placed on Office Memorandums dated 07.07.2008 and
02.11.2012 as well.
18. The relevant portion of Office Memorandum dated 07.07.2008
is as under:
"(iv) The term 'empanelment' occurring in para 1 of DOPT's O.M.
No. 11012/11/2007-Estt. (A) dated 14.12.2007 relating to
guidelines on grant of vigilance clearance does not cover cases of
promotion. Cases of promotion of Government servants during
the pendency of disciplinary proceedings would be regulated by
DOPT'S O.M. No. 22011/4/91-Estt. (A) dated 14.09.1992, Ο.Μ.
No. 22012/1/99-Estt. (D) dated 25.10.2004 and after imposition of
any of the prescribed penalties as per O.M. No. 22034/5/2004-
Estt. (D) dated 15.12.2004."
19. The relevant portion of Office Memorandum dated 02.11.2012,
which also makes reference to the Office Memorandums dated
14.09.1992 and 25.10.2004, is as under:
"Instructions issued vide O.M. No. 22012/ 1/99-Estt. (D)
dated 25.10.2004 based on the O.M. No. 22011/4/1991-Estt. (A)
dated 14.09.1992 (issued on the basis of procedure laid down by
Supreme Court in K.V. Jankiraman case AIR 1991 SC 2010) makes
W.P.(C) 569/2019
15:45:14
it clear that vigilance clearance for promotion may be denied only
in the following three circumstances:-
(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.
Withholding of vigilance clearance to a Government
servant who is not under suspension or who has not been issued
a charge sheet and the disciplinary proceedings are pending or
against whom prosecution for criminal charge is not pending
may not be legally tenable in view of the procedure laid down in
the aforesaid O.Ms.
xxx
5. The O.M No. 22012/ 1/99-Estt. (D) dated 25th October,
2004 further provides that a DPC shall assess the suitability of
the Government servant coming within the purview of the
circumstances mentioned in para 2 of the Office Memorandum
No. 22011/4/91-Estt.(A) dated 14.09.1992, alongwith other
eligible candidates, without taking into consideration the
disciplinary case/criminal prosecution pending. No promotion
can be withheld merely on the basis of suspicion or doubt or
where the matter is under preliminary investigation an as not
reached the stage of is 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, the Government is
within its right to suspend the of official. In that case, the officer's
case for promotion would automatically be required to be placed
in the sealed cover.
6. When a Government servant comes under a cloud, he
may pass through three stages, namely, investigation, issue of
charge sheet in Departmental Proceedings and/or prosecution for
a criminal charge followed by either penalty/conviction ог
exoneration/acquittal. During the stage of investigation prior to
issue of charge sheet in disciplinary proceedings or prosecution,
if the Government is of the view that the charges are serious and
the officer should not be promoted, it is open to the Government
to suspend the officer which will lead to the DPC
recommendation to be kept in sealed cover. The sealed cover
procedure is to be resorted to only after the charge memo/charge
sheet is issued or the officer is placed under suspension. The
W.P.(C) 569/2019
15:45:14
pendency of preliminary investigations prior to that stage is not
sufficient to adopt the sealed cover procedure.
7. The law on sealed cover based on the judgment of the
Apex Court in Union of India vs. K.V. Janakiraman etc. (AIR 1991
SC 2010), is by now well settled. The O.M. dated 14.9.92 confined
the circumstances for adopting sealed cover to the three
situations mentioned in para 2 of the said O.M. Even after
recommendation of the DPC, but before appointment of the
officer if any of the three situations arise, the case is deemed to
have been kept in sealed cover by virtue of para 7 of the O.M.
dated 14.9.92.
xxx
9. For the purpose of vigilance clearance for review DPC,
instructions exist in O.M. No. 22011/2/99-Estt.(A) dated
21.11.2002 that review DPC will take into consideration the
circumstances obtaining at the time of original DPC and any
subsequent situation arising thereafter will not stand in the way of
vigilance clearance for review DPC. However, before the officer
is actually promoted it needs to be ensured that he/she is clear
from vigilance angle and the provision of para 7 of O.M. No.
22011/4/91-Estt.(A) dated 14.09.1992 are not attracted.
xxx
11. This Department has issued separate instructions for
accordance of vigilance clearance to a member of Central Civil
Services/holder of Central Civil post with respect to (a)
empanelment (b) deputation (c) appointments to sensitive posts
and assignments to training programmes (except mandatory
training) vide O.M. No. 11012/11/2007-(Estt. A) dated 14.12.2007.
It has been further clarified in the O.M. No. 11012/6/2008-Estt.
(A) dated 07.07.2008 that these instructions do not apply to
promotions. Consideration for promotion is a right of an
employee but empanelment, deputation, posting and assignment
for training (except mandatory training) is not a right of an
employee and is decided keeping in view the suitability of the
officer and administrative exigencies.
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
W.P.(C) 569/2019
15:45:14
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)
20. Having perused the said Office Memorandums, this Court finds
merit in the argument of the Petitioner that Office Memorandums
dated 14.12.2007 and 21.06.2013 have no bearing on promotion of an
employee.
21. Pertinently, the only reason the Petitioner was denied promotion
was due to him being placed in the Agreed List for two years, which
was a category introduced for denying vigilance clearance by way of
Office Memorandum dated 21.06.2013. Although Office
Memorandums dated 07.07.2008 and 02.11.2012 were passed prior to
the issuance of the said Office Memorandum, it is important to note
that Office Memorandum dated 21.06.2013 only relates to amendment
of the criteria prescribed in Office Memorandum dated 14.12.2007.
22. While on first blush, the argument of the Respondents qua
appointment being inclusive of cases of promotions appears to be
meritorious, it cannot be ignored that Office Memorandums dated
07.07.2008 and 02.11.2012 specifically iterate that Office
Memorandum dated 14.12.2007 would not apply to cases of
promotion. The rationale for the same is provided in paragraph 11 of
Office Memorandum dated 02.11.2012 which mentions that while
promotion is a right, the empanelment, deputation, posting and
W.P.(C) 569/2019
15:45:14
assignment for training (except mandatory training) of an employee is
hinged on exigencies and suitability of the said employee. Similarly,
the said reason would also stand true for Office Memorandum dated
21.06.2013 as no changes have been made to the applicability of the
said rigors and it is only the parameters which have been expanded.
23. Although the Respondents have sought to stress upon the
sensitivity of the post, considering the explicit strictures of the rigors
of Office Memorandum dated 14.12.2007 not being applicable, this
argument is of no benefit. No caveat is made on applicability of the
said Office Memorandum in promotion irrespective of the sensitivity
of the post.
24. Rather, Office Memorandums dated 14.09.1992 and 25.10.2004
hold the stage in regard to denial of vigilance in cases of promotion.
As the Petitioner was not placed under suspension, chargesheeted in
disciplinary proceedings and since no prosecution for a criminal
charge was pending against him at the relevant time, his case does not
fall in the limited criteria for denial of promotion, as is prescribed in
Union of India v. K.V. Jankiraman (supra) and the aforesaid
memorandums. Despite the assertions of the Respondents that the
allegations in FIR were attributable to the Petitioner, it is pointed out
that till date, no adverse action has been taken against the Petitioner in
the FIR or in the vigilance enquiry.
25. It is also significant to note that the promotion of the Petitioner
was also approved by the ACC. This Court fails to understand the
W.P.(C) 569/2019
15:45:14
stubbornness of the department to deny benefit of promotion despite
being approved by the DPC as well as ACC.
26. Even otherwise, the learned Tribunal has aptly appreciated that
the scope of 'Agreed List' remains vague and omnibus. In comparison
to the high standards of an employee being placed under suspension or
charge sheeted, the said parameter does not indicate as to under what
circumstances a person can be placed on the Agreed List. The opaque
nature of this category leaves scope for the employer to create hurdles
in promotion on mere doubt or suspicion, which is impermissible in
law. Despite the emphasis of the learned Tribunal on the need for
circumstances to be as grave as the other parameters for a person to be
placed on the Agreed List and denied promotion, the Respondents
mechanically denied promotion to the Petition on the same ground.
This Court in the present case also has the benefit of hindsight brought
on by lapse of time. Even after more than 7 years from when the
impugned order was passed, there is no action against the Petitioner in
relation to the allegations which resulted in him being placed on the
Agreed List. The same further persuades this Court to decide in favour
of the Petitioner.
27. In such circumstances, this Court is of the opinion that the
Petitioner ought to have been promoted on the basis of the
recommendation of the DPC.
28. In view of the above, considering that the Petitioner has already
retired from service, the Respondents are directed to grant all the
W.P.(C) 569/2019
15:45:14
consequential benefits of notional promotion to the Petitioner.
Needless to say, such promotion should be deemed to have taken
effect from the date suggested by DPC.
29. The present petition is allowed in the aforesaid terms.
AMIT MAHAJAN, J.
ANIL KSHETARPAL, J.
MARCH 18, 2026
W.P.(C) 569/2019
15:45:14
