Sri Rajdev Singh Yadav vs The Union Of India
2021 Latest Caselaw 924 Tri

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                    HIGH COURT OF TRIPURA
                      _A_G_A_R_T_A_L_A_
                       WP(C) No.370 of 2021
Sri Rajdev Singh Yadav, son of late Kamta Yadav, permanent resident
of village- Keshawpur, Mohammdabad, P.O., P.S. & Sub-Division-
Mohamadabad, District- Ghazipur, Uttar Pradesh, presently residing at
21 Assam Rifles, C/O 99 APO, Kunjaban, Agartala, West Tripura,
799001.
                                                ......Petitioner(s)
                              Versus

1. The Union of India, represented by the Secretary, Ministry of Home
Affairs, Government of India, having his office at North Block
Secretariat, New Delhi- 110001.
2. The Secretary, Ministry of Home Affairs, Government of India,
having his office at North Block Secretariat, New Delhi- 110001.
3. The Director General, Assam Rifles, having his office at Head
Quarter, Director General Assam Rifles, Shillong (Laitkor), Meghalaya.
4. The Inspector General, Assam Rifles, having his office at Head
Quarter, Inspector General Assam Rifles (East), Srikona, Silchar,
Assam.
                                         ......Official Respondent(s)

5. Commandant G.R. Pillai, having his office at Head Quarter, 10 th Sector, Assam Rifles, Ukhrul, Manipur.

6. Commandant Rampal Singh, having his office at Head Quarter, 5th Sector Assam Rifles, Chieswema, Nagaland.

                                          ......Private Respondent(s)

                   _B_E_F_O_R_E_
     HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

For Petitioner(s)         :   Mr. Somik Deb, Sr. Advocate,
                              Mrs. Riya Chakraborty, Advocate,
                              Ms. S. Chisim, Advocate.

For Respondent(s)         :   Mr. Bidyut Majumder, Asst. S.G.

Date of Judgment & Order :    16th September, 2021.




Whether fit for reporting     : Yes.

                  JUDGMENT & ORDER (ORAL)

The petitioner has challenged departmental communications

under which his request for promotion has been rejected.

[2] Brief facts are as under :

The petitioner is holding the post of Second-in-Command

in Assam Rifles. On 31.07.2015 Assam Rifles issued what is titled as

"tentative charge-sheet" in which it is alleged that while working in the

Directorate General of Assam Rifles at Shillong between 6th December

2012 to 14th January, 2015 the petitioner failed to establish the source of

cash deposits of Rs.17,43,994/- in his bank account which was done

during the period between 10th December, 2011 to 3rd March, 2014. It is

also alleged that the petitioner failed to establish the source of two fixed

deposits of Rs.11,83,861/- and Rs.10,82,233/- in his bank accounts

during the same period. Subsequently, on 29.07.2019 the first

information report was also lodged against the petitioner in Shillong for

offence punishable under Section 13(2) read with Section 13(1)(e) of the

Prevention of Corruption Act. In this complaint it was alleged that the

petitioner was holding assets to the extent of Rs.1,19,59,865/-

disproportionate to the known source of income. A detailed account of

the petitioner's known sources of income, his reasonable expenditure

and the assets of the petitioner detected by the department were also

listed. The CBI has submitted a charge-sheet in connection with the said

criminal case on 30.03.2021. The criminal case is pending.

[3] According to the petitioner, two persons in his cadre who

are junior to him namely, Shri G.R. Pillai and Rampal Singh, in the

meantime have been promoted to the next post of Commandant ignoring

the claim of the petitioner. The petitioner, therefore, made

representations to the department for grant of promotion. By the

impugned communications, his request was refused. In one such

communication dated 02.07.2020 it is stated that the criminal case is still

under investigation and, therefore, the petitioner cannot be promoted for

want of vigilance clearance. At that stage, the petitioner has filed the

present petition. His request is that he should be promoted to the post of

Commandant since when his turn arrived for consideration for

promotion, neither departmental charge-sheet was issued nor charge-

sheet filed in the criminal case. Obviously, the petitioner is placing

heavy reliance on the decision of the Supreme Court in case of Union of

India and others versus K.V. Jankiraman and others reported in

(1991) 4 SCC 109. Learned counsel for the petitioner vehemently

contended that on the date when the petitioner's juniors were promoted,

the department had not yet issued a departmental charge-sheet, nor CBI

had presented its charge-sheet before the criminal court. Subsequent

presentation of the charge-sheet would not take away the petitioner's

right which was denied at the relevant time. He, therefore, submitted

that the respondents be directed to open the sealed cover containing the

recommendations of the petitioner if they have followed sealed cover

procedure, or else the respondents be directed to convene a review DPC

to consider the case of the petitioner as on the date on which his juniors

were considered.

[4] On the other hand, learned Assistant Solicitor General

appeared for the respondents and opposed the petition contending that

the petitioner is facing serious charges. The CBI has investigated the

allegations and filed a charge-sheet before the criminal court for

commission of offence punishable under Section 13(2) of the Prevention

of Corruption Act. It was found that the petitioner is holding large

amount of assets disproportionate to his known source of income.

[5] The Supreme Court in case of Jankiraman considered the

question when a government servant whose right for being considered

for promotion has arrived, can be denied such promotion on the ground

of alleged misconduct or a criminal action. Referring to the

memorandum of department of Personnel and Training providing for

circumstances under which such promotion can be withheld, the

Supreme Court considered the question as to when can it be stated that

the departmental proceedings have been initiated against a government

servant. In this context, it was held that mere preliminary inquiry would

not be sufficient and promotion can be withheld only if either a

departmental charge-sheet has been issued or charge-sheet is filed in the

criminal case against the government servant. It was observed that in

cases of serious allegations where neither of these two stages have been

completed, the department is not without remedy and in appropriate

cases the government servant can as well be placed under suspension

upon which automatically he would be deprived of promotion.

[6] This decision in case of Jankiraman has been followed in

large number of subsequent decisions. For example, in case of Union of

India and others versus Sangram Keshari Nayak reported in (2007) 6

SCC 704 which was cited by the counsel for the petitioner, the Supreme

Court relying upon the decision in case of Jankiraman held that the

government servant must be granted promotion since on the date on

which his right to be considered for promotion had arisen, neither

departmental charge-sheet was issued to him nor charge-sheet was filed

in the criminal case.

[7] However, in certain cases of serious allegations of fraud,

corruption etc. the Supreme Court has also recognized a degree of

leverage to the department. In case of State of Madhya Pradesh and

another versus Syed Naseem Zahir and others reported AIR 1993 SC

1165 the Supreme Court noted that in the said case sealed cover

procedure was adopted even though departmental inquiry was not yet

instituted against the government servant. However, the Supreme Court

refused to issue directions to open such sealed cover till departmental

proceedings are concluded in view of the gravity of charges against the

delinquent of having caused loss of Rs.84,00,000/- to the State

Government.

[8] In case of Union of India versus Kewal Kumar reported in

(1993) 3 SCC 204 it was observed that in a case where CBI had

recorded an FIR, sent the same to the superior authorities of the

employee for taking necessary action and the competent authority had

also taken a decision on the basis of FIR to initiate departmental

proceedings against him for imposition of major penalty, sealed cover

procedure would be attracted and the government servant could be

deprived of the promotion unless exonerated of the charges.

[9] In case of Delhi Development Authority versus H.C.

Khurana reported in (1993) 3 SCC 196 the Supreme Court considered

similar issue. It was observed that the meaning of the word "issue"

(departmental charge-sheet) has to be gathered from the context in

which it is used. The decision to initiate departmental proceedings

cannot be subsequent to the issuance of the charge-sheet, since issue of

the charge-sheet is a consequence of the decision to initiate departmental

proceedings. The service of the charge-sheet on the government servant

follows the decision to initiate departmental proceedings. The delay, if

any, in service of the charge-sheet to the government servant after it has

been framed does not have the effect of delaying the initiation of the

departmental proceedings.

[10] In case of Union of India and another versus R.S. Sharma

reported in (2000) 4 SCC 394 was the case in which the government

servant was not promoted though right to be considered for promotion

had arisen till formal sanction to prosecute him was accorded by the

department. Referring to the OM of the department of Personnel and

Training regarding sealed cover providing that the case of the employee

will remain in sealed cover "until he is completely exonerated of the

charges against him". It was held that in such a case the employee could

not insist on promotion.

[11] Reverting to facts of the present case, we may recall, the

Assam Rifles first issued what is referred to as "tentative charge-sheet"

which contained serious allegations of the petitioner failing to disclose

the source of cash and fixed deposits in his bank accounts running into

several lacs of rupees. In the year 2019, the department also filed a

criminal complaint investigation of which was handed over to CBI. CBI

issued the charge-sheet upon completion of the investigation in March,

2021 for offence punishable under Section 13(2) of the Prevention of

Corruption Act alleging that the petitioner was holding assets worth over

rupees one crore than his known source of income. The petitioner is thus

facing serious allegations of holding large disproportionate assets. Even

prior to filing of the FIR and submission of the charge-sheet by CBI the

petitioner was facing allegations of cash and fixed deposits in his bank

accounts source of which he could not disclose.

[12] The Assam Rifles Act, 2006 contains several provisions

for dealing with the delinquencies of the members of the Force as also to

deal with their criminal actions through Assam Rifles Court which

would follow summary procedure. Section 49 of the Act for example is

a general provision which provides that any person who is guilty of any

act or omission which though not specified in the Act, is prejudicial to

good order and discipline of the Force shall on conviction by Assam

Rifles Court be liable to suffer imprisonment for a term which may

extend to seven years or such lesser punishment as in the Act provided.

Section 57 pertains to punishment awardable by Assam Rifles Courts.

The powers range from awarding death penalty to lesser punishments

such as stoppage of pay and allowances for recovery or loss or damage

caused by the convict. Section 58 also empowers the Assam Rifles

Courts to impose alternative punishment which is lesser than those

specified in the statutory provisions. Section 62 pertains to minor

punishments which a Commandant can impose. Section 11 of the Act

pertains to dismissal, removal or reduction by Director General or the

other officers. Sub-section (1) of Section 11 provides that the Director

General, Additional Director General or any Inspector General may

dismiss, remove from service or reduce to a lower grade or rank any

persons subject to the provisions of the Act.

[13] Thus, the Assam Rifles Act, 2006 contains detailed

provisions for proceeding against the petitioner departmentally as well

as criminally. Criminal conviction may also result into punishments

which are in the nature of imprisonment of defined terms or even lead to

adverse service consequences.

[14] In view of such peculiar provisions, the employees of the

Assam Rifles cannot be equated with civilian staff of the Government of

India for the purpose of considering the right for promotion in face of

serious allegations pending against them. We may recall, the entire

genesis of the judgment of the Supreme Court in case of Jankiraman

was the office memorandum issued by the department of Personnel and

Training which laid down conditions for denial of promotion to a

government servant. It was in this context, the Supreme Court was

examining the true import of the issuance of charge-sheet. These

guidelines obviously would not govern the present case. To recall, the

department had already taken a decision to proceed against the petitioner

for allegations of undisclosed cash and fixed deposits in his bank

accounts way back in the year 2015. In the year 2019, the department

also lodged a criminal complaint against the petitioner for possessing

vast assets in excess of his known sources of income and handed over

the investigation to the CBI. Both these events took place before the

petitioner's case was ripe for promotion. The petitioner has not

disclosed in the petition when his juniors were promoted. However,

learned counsel for the petitioner under instructions stated that such

promotions were granted in the year 2020. Even going by this statement

and accepting it to be true, the department had already issued a tentative

charge-sheet under the Assam Rifles Act and lodged a criminal

complaint against the petitioner and handed over investigation thereof to

the CBI. It is true that the CBI filed the charge-sheet against the

petitioner only thereafter. However, in facts of the present case, the

respondents cannot be directed to grant promotion to the petitioner till

he is cleared of all the charges.

[15] The respondents, however, must follow the sealed cover

procedure till the proceedings against the petitioner are concluded. Upon

his exoneration such sealed cover can be opened and recommendations

acted upon. If no such procedure is followed, years later a situation may

arise where the department may be asked to draw review DPC and to

consider the case of the petitioner as on an anterior date which would be

wholly undesirable.

[16] In the result, subject to above observations, petition is

dismissed. Pending application(s), if any, also stands disposed of.

(AKIL KURESHI, CJ)

Dipesh