Ram Singh vs Union Of India And Ors

L. Narasimha Reddy, J

The applicant joined the service in the office of Controller General of Accounts, Ministry of Finance in the year 1966, and earned various

promotions. In 1992, he became Senior Accounts Officer, and on 04.12.1992 he was appointed to officiate against the Senior Time Scale (STS) in the

Indian Civil Accounts Service (ICAS). It is stated that the applicant was inducted into Junior Time Scale (JTS) in ICAS on 30.03.1994, and had

completed probation in that post on 20.07.1995. He became eligible to be promoted as STS in ICAS in the year 1995 itself. The DPC for that purpose

met on 31.07.1995. However, a criminal case was registered against him by the CBI at that time. Therefore, the sealed cover procedure was adopted.

The applicant retired from service on 31.12.2000 on attaining the age of superannuation. The criminal case that was pending against him, ended in

acquittal through judgment dated 22.02.2012.

Promotion to Junior Administrative Grade (JAG) on ad hoc basis, took place in the year 1999. However, the case of the applicant was not

considered since the criminal case was pending. Regular promotion to JAG took place in the year 2000. The applicant was not considered in view of

the fact that he was not promoted to STS, the feeder category.

After the applicant was acquitted in the criminal case, sealed cover procedure maintained in relation to his promotion to the post of STS was

opened, since the applicant was found fit, by the DPC. He was extended the benefit of promotion to STS through order dated 25.03.2013 w.e.f.

23.08.1995.

At one stage, the case of the applicant for further promotion to Junior Administrative Grade (JAG) was considered by his employer. The proposal,

however, did not find favour with the DoP&T and the same was returned through order dated 25.06.2014. In the light of the same, the representations

made by the applicant were rejected on 25.06.2014, 29.10.2014 and 07.01.2016. This OA is filed challenging the said orders. The applicant has also

prayed for relief of promotion to JAG w.e.f. 24.04.1999 on ad hoc basis, and w.e.f. 24.04.2000 on regular basis, with all consequential benefits, apart

from interest at the rate of 18% per annum.

The applicant contends that once he was acquitted in the criminal case, he was entitled to be extended all the benefits that were otherwise due to

him, had he been in service without such blemish, and the respondents have denied the benefit of promotion to JAG to him though many of his juniors

were extended that. Various other contentions were also urged.

The respondents filed the counter affidavit opposing the OA. Serious objection is taken as to the limitation. They contend that the cause of action, if

at all, has accrued to the applicant long back and there was no basis for filing the OA at a belated stage. On merits, it is stated that the sealed cover

procedure was followed in the case of the applicant and as soon as he was acquitted in the criminal case albeit 12 years after his retirement, it was

opened and benefit of promotion was extended to him. It is further stated that the question of considering the case of the applicant for promotion to

JAG does not arise since he was promoted to STS only in the year 2013, and a retired employee cannot be considered for promotion at all.

Shri Vidya Sagar, learned counsel for the applicant advanced extensive arguments. He submits that whenever the sealed cover procedure is

adopted, whether on account of pendency of disciplinary proceedings or criminal case, an employee is required to put in the same place at par with

other employees of similar nature once he is exonerated or acquitted. He submits that though the benefit of STS was extended to the applicant after

his acquittal, the consequential and further benefit of promotion to JAG was wrongfully denied to him. Reliance is placed upon the judgment of

Hon’ble Supreme Court in Union of India vs. K. V. Janakiraman (1991) 4 SCC 109 and a Full Bench judgment of this Tribunal in K. Ch. Venkata

Reddy and Others vs. Union of India & Others (1987) 3 Administrative Tribunals Cases 174.

Shri Manjeet Singh Reen, learned counsel for the respondents, on the other hand, submits that as provided for under the law laid down by the

Hon’ble Supreme Court, the applicant has been extended the benefit of promotion to STS even though he was acquitted 12 years after his

retirement, and an officer can be considered for promotion to JAG if only he was already an STS. He submits that the applicant was promoted to STS

only in the year 2013, by which time, he is ceased to be in service and the question of his being considered for JAG does not arise.

The progression of the applicant up to the stage of JTS was smooth in the career. He became eligible to be considered for promotion to STS in the

year 1995 and the DPC met for that purpose, on 31.07.1995. It is not in dispute that a criminal case was instituted against him, at that time. Therefore,

sealed cover procedure was adopted. Unfortunately for the applicant, the criminal case was pending till the year 2012, twelve years after his

retirement.

In the hierarchy in the department, promotion from STS is to JAG. Initially, steps were taken for promotion on ad hoc basis and even for that

purpose, the DPC met. The case of the applicant, however, could not be considered in view of the fact that he was yet to become part of STS, the

feeder category for JAG. Steps for regular promotion to JAG were taken in the year 2000 and same situation remained as regards the applicant.

It is true that if the sealed cover procedure is adopted in respect of an employee and he is acquitted in a criminal case or exonerated in the

disciplinary proceedings, the sealed cover is required to be opened and he is entitled to be extended all the benefits, which were denied to him on

account of the pendency of such proceedings. In the case of the applicant, the sealed cover procedure was opened and he was promoted to STS

through order dated 25.03.2013 consequent upon his acquittal. The order reads as under:-

“ORDER

The President is pleased to appoint Shri Ram Singh a retired officer of 1991 batch of Indian Civil Accounts Service, to the Senior Time Scale in the

pay scale of Rs.10000-325-15200 (pre-revised) (New PB-3 with GP Rs.6600) with effect from 23.08.1995, i.e., the date his immediate senior Shri M.

N. Mehta, ICAS (1991) was promoted, since no junior eligible officer was available for making promotion in terms of DoPT’s OM No.8/4/84-

Estt. (Pay-I) dated 15.07.1985.â€​

It needs to be mentioned here that this order came to be passed 13 years after the applicant retired from service. He has no grievance as regards the

extension of benefits referable to the promotion to STS. His entire grievance is about the denial of promotion to JAG. With all sympathy to the

applicant, the department forwarded the proposal for promotion to JAG also to DoP&T. However, through order dated 25.06.2014, the DoP&T has

taken the stand as under:-

“The O/o CGA has made a direct reference through enclosed OM seeking opinion of this Department in the matter of promotion of Shri Ram

Singh a retired officer of ICAS. This reference needed to be routed through the Ministry of Finance with a self contained note on the relevant file. As

the matter is also under consideration of a National Commission of Scheduled Caste (NCSC), the matter has been examined by this Department.

The facts of the case are that Shri Ram Singh was considered for regular promotion to STS of ICAS. However, the findings of DPC were kept in a

sealed cover due to pendency of a criminal case. The officer was acquitted vide judgment of trial court dated 22/2/2012 after retirement on

31/12/2000. Consequent upon his acquittal the referring Department had opened the sealed cover and granted regular promotion to Shri Ram Singh in

STS retrospectively w.e.f. 23/8/85. Shri Singh has now requested for ad-hoc promotion w.e.f. 20/4/99 and regular promotion w.e.f. 24/4/2000 in JAG

as given to officers of his batch.

The case has been examined and following is observed:

(a) The sealed cover procedure are applicable in ad hoc promotion cases as per this Department instructions contained in OM dated 23.2.1999. In the

context of opening of sealed cover and acting on the recommendations contained in it, it may be noted that this Department’s OM dated 14/9/1992

prescribes that Government Servants in whose case recommendations have been kept in sealed cover due to pendency of a disciplinary/criminal case,

on being fully exonerated on conclusion of the case, the sealed covers shall be opened and if found fit, shall be promoted notionally with reference to

the date of promotion of his junior. However, whether such officer shall be entitled to arrears of pay and allowances shall be decided by the appointing

authority by taking into consideration all facts and circumstances of the disciplinary proceedings/criminal prosecution. However, this OM does not

provide whether officers who are exonerated fully of all charges after their retirement shall also be covered under the said provisions contained in OM

dated 14.9.92.

(b) This Department OM dated 12.10.98 dealing with consideration of retired officers who were within the zone of consideration in the relevant years

but are not actually in service when DPC is held, while preparing year wise panels provides that names of the retired officers are to be included in the

panel if found fit. Such retired officers would, however, have no right for actual promotion.

(c) The DPC guidelines issued vide OM dated 10.4.89 vide instructions contained in paras 6.4.4 and 17.10 provide that promotions will have only

prospective effect even in cases where the vacancies relate to previous years.

In view of the observations in para 3 above, the opening of sealed cover consequent upon acquittal of Shri Ram Singh after his retirement and

giving it to its recommendations retrospectively is not in order. Hence, his request for further promotion to JAG (Ad hoc/Regular) is also not in

accordance with the extant policy of this Department.â€​

Reference was made to various office memoranda also. The gist of the same is that further promotion can be ordered if only the employee was in the

zone of consideration and the only impediment was pendency of criminal case or disciplinary proceedings. That situation did prevail vis-Ã -vis the post

of STS. However, as regards JAG, he was not in the zone of consideration till the year 2013. The occasion to consider his case for promotion

thereafter did not arise since he retired 12 years earlier to that.

Heavy reliance is placed upon paras 23 & 26 of the judgment in K. V. Janakiraman (supra). It read as under:-

“23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that

he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of

the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same……..

xxx xxx xxxx

We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he

is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post

along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However,

there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the

clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence

due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decided whether

the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not

possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary…….â€​

The emphasis is no doubt to ensure that the employee is put in the same position as he would have been, before initiation of departmental or criminal

proceedings, if he is exonerated or acquitted, as the case may be. We do not find in the entire judgment any instance of a retired employee being

extended the benefit of further promotion as a sequel to the benefit of one promotion on opening the sealed cover. In the Full Bench judgment of this

Tribunal in K. Ch. Venkata Reddy (supra) also, the same principle was enunciated. Here again, not a word was said about the right of a retired

employee, for further promotion.

It is fairly well settled that the question of a retired employee to be promoted does not arise. The only exception is that if such an employee was

considered along with his juniors by the DPC, sealed cover procedure was followed in respect of him, and on opening of sealed cover, if it emerges

that he was found fit; and his junior was promoted with effect from any date anterior to his retirement, he is also entitled for promotion on notional

basis from the date on which his junior was promoted. Even where a sealed cover procedure is adopted, if the selection process did not result in

promotion of a junior with effect from a date anterior to the one of retirement of senior, the question of extending the benefit even on notional basis

also does not arise. In Devki Nandan Gupta vs. Union of India (OA 3484/2009 decided on 01.08.2011), this Tribunal summed the principles of law in

this behalf as under:-

“12. From the above cited judgments, the following key principles emerge:

(i) There is no rule that promotion should be given from the date of creation of the promotional post or from the date of vacancy.

(ii) If promotion is effected prospectively from the date of issue of the order of promotion, retired employees prior to such date would not be eligible

for promotion retrospectively. Even if retired employees are in the Select List or Panel for promotion, they cannot be given retrospective promotion

when the promotion is prospective.

(iii) if promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was

in service and if the retired employee has been found fit by the DPC and is available in the Panel or Select List, such retired employee would be

entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted.â€​

Reference was made to various judgments of the Hon’ble Supreme Court.

In the instant case, it is not even alleged that the case of the applicant was considered for JAG when he was in service or after retirement; much

less sealed cover procedure was adopted. As a matter of fact, he did not acquire eligibility for consideration for JAG till the year 2013.

The applicant may have been put to hardship on account of the long pendency of the criminal case for more than a decade. However, the various

events referred to above, would lead to a situation where the applicant was not entitled to be extended the benefit of notional promotion to JAG.

These, however, are vagaries of service and we cannot expect law to provide solution in respect of every situation.

We do not find any merit in the OA. It is accordingly dismissed.