R.M. Upadhyaya vs Union of India (UOI) and Others

R.A. Sharma, J.—Petitioner is Commandant of the Central Industrial Security Force (hereinafter referred to as the Force). Next higher post to which the Petitioner can be promoted is the post of Deputy Inspector General of the Force, which is a selection post, the promotion to which is to be made on the basis of merit by the Departmental Promotion Committee (hereinafter referred to as the D.P.C.). The D.P.C. met on 24.1.1994 and recommended the Petitioner''s name for promotion to the post of the D.I.G.. but before he could actually be promoted, a charge-sheet dated 23.6.1994 was issued to him, with the result that the recommendation of the D.P.C. for his promotion has been kept in sealed cover and the Petitioner has been Informed by a letter dated 25.1.1995 that in view of the adoption of the procedure of the sealed cover, the appointing authority has withheld, his promotion to the rank of the D.I.G. Being aggrieved, Petitioner has filed this writ petition.

Respondents have filed counter and supplementary counter-affidavits and the Petitioner has filed rejoinder-affidavit in reply thereto. We have heard the learned Counsel for the parties.

Learned Counsel for the Petitioner has made two submissions in support of the writ petition, namely. (1) as neither any disciplinary inquiry nor any prosecution for a criminal charge was pending against the Petitioner on 24.1.1994 when the D.P.C. recommended his name for promotion, Respondents can neither apply the procedure of sealed cover nor can they withhold his promotion on the basis of the charge-sheet issued after 24.1.1994; and (ii) withholding of the Petitioner''s promotion, issuing charge-sheet and applying the procedure of sealed cover are motivated, mala fide and are based on extraneous consideration. Learned Counsel for the Respondents has disputed the above contentions.

Petitioner was initially appointed as Assistant Commandant in Border Security Force in 1966. In July, 1974 he Joined the Force as Assistant Commandant. He has earned various medals and awards for his outstanding services, detail of which is as under:

President Police Medal for Gallantery,

2 Police Medal for meritorious service,

Sangram Medal,

4 Hard Service Medal,

5 Independence Medal,

6 Nehru Awards,

Director General''s Disc, for outstanding service twice

Director General''s commendation Cards, and

Inspector General''s commendation Cards.

In view of the outstanding service record of the Petitioner, he was selected and placed at serial No. 1 in the select list and recommended by the D.P.C. on 24.1.1994 for promotion to the post of the D.I.G. About six months after the recommendation of the D.P.C, a charge-sheet dated 23.6.1994 was served to the Petitioner on 5.7.1994. Copy of the charge-sheet has been filed as Annexure 4 to the writ petition, which contains the following three charges:

Petitioner in 1991-92 got furnitures repaired and prepared for his personal benefit out of the wood and material purchased by the Unit from the fund provided by the Management and he also used the services of the Unit Carpenter for preparing and repairing his furnitures;

2 Petitioner during the year 1991-92 has got purchased a large number of consumable material from imprest fund account of the Unit provided by the Management but the same was not properly accounted for; and

During the year 1991-92 Petitioner has used the Government vehicle for his personal journey.

It is on the basis of these charges that the order of the D.P.C. selecting the Petitioner for promotion to the post of D.I.G. has been kept in sealed cover and the appointing authority has passed an order withholding his promotion during the pendency of the disciplinary proceedings against him.

The Government of India has issued orders from time to time regarding adoption of the procedure of sealed cover in the matter of promotion of the Government servants against whom disciplinary/criminal proceedings are pending. The latest order, in this connection, which has been placed before the Court by the learned Counsel for both the parties, is dated 14.9.1992. This order has provided that the D.P.C. shall adopt the procedure of sealed cover when a Government servant is under suspension or in respect of whom a charge-sheet has been issued and disciplinary proceeding or prosecution for criminal charge is pending. Para 7 of the same order has provided that the procedure of sealed cover can be adopted even after a Government servant has been recommended for promotion by the D.P.C, if he has been placed under suspension or in respect of whom the disciplinary proceeding or criminal prosecution has been initiated before he is actually promoted. The Government, thus, has the power to adopt the procedure of sealed cover and withhold the employee''s promotion if the disciplinary proceedings have been initiated against him before he was actually promoted. There is no dispute that till the Petitioner was served with a charge-sheet, he was not actually promoted, although the D.P.C. has recommended his case for promotion about six months earlier. In view of para 7 of the Government Order dated 14.9.1992, the first contention of the learned Counsel for the Petitioner is liable to be rejected.

The decisions of the Hon''ble Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., and State of Madhya Pradesh and another Vs. Syed Naseem Zahir and others, on which reliance has been placed by the learned Counsel for the Petitioner can be of no help to him. In Union of India v. K.V. Jankiraman (supra) the Supreme Court has held that the sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet has been issued to the employee and the disciplinary/criminal proceedings are pending against him at the time when the D.P.C. considers his case for promotion. It was further laid down that such a procedure is not to be resorted to even if there are serious allegations against the employee if the charge-sheet has not been issued to him till the date the D.P.C. meets.

Supreme Court in its later decision in the case of State of Madhya Pradesh v. Syed Naseem Zahir (supra) has, following its earlier decision in the case of Union of India v. K.V. Jankiraman. reiterated that, "sealed cover" procedure could be adopted only after the date of issuance of charge-sheet", and if on the date when the D.P.C. recommended for promotion, there was no Charge-sheet against the employee, such a procedure cannot be adopted. In none of the aforesaid two cases the question regarding the power of the Government to adopt the sealed cover procedure after the recommendation of the D.P.C. but before the grant of actual promotion to the concerned employee was involved. In fact in Union of India v. K.V. Jankiraman (supra), the Hon''ble Supreme Court noted the relevant clauses of the earlier Government order authorising the Government to adopt the procedure of sealed cover after the recommendation for promotion by the D.P.C. and before the grant of actual promotion; but effect of those clauses giving such power to the Government was not considered by the Supreme Court on the ground that they have no bearing on the questions to be answered in that case. As long as para 7 of the Government Order dated 14.9.1992 is there, the Government will have the power to adopt the procedure of sealed cover after recommendation of the D.P.C. and before the grant of actual promotion to the concerned Government servant. Petitioner has not challenged the validity of the said Government Order. The first contention of the Petitioner is, therefore, rejected.

In paragraph 15 of the writ petition, Petitioner has stated that a frivolous charge-sheet has been issued to him after his selection for promotion by the D.P.C. in order to harass and harm him so as to enable his juniors to supersede him, Paragraph 15 of the writ petition is reproduced below:

That as stated that the Petitioner has stated in the preceding paragraphs, why the Petitioner was earlier discriminated against and his junior colleagues were promoted and placed above him and in order to further harass the Petitioner and spoil his unblemished career record, a frivolous charge-sheet has been issued on subsequent date after coming to know that the name of the Petitioner has been cleared by the Departmental Promotion Committee and the Petitioner has been placed at Sr. No. 1. The charge-sheet has been issued with the sole intention to deprive the Petitioner of his selection to the post of Deputy Inspector General.

Reply to paragraph 15 of the writ petition is contained in paragraph 15 of the counter-affidavit, filed on behalf of the Respondents, which is as under:

That the contents of para 15 of the writ petition, it is same as explained in para 13 above.

Paragraph 15 of the counter-affidavit refers back to paragraph 13 of the same affidavit, which is also reproduced below:

That the contents of para 13 of the writ petition, it is stated that the averments made in this para are not accepted. According to the instructions contained in DP & Trg O.M. No. 22011/4/9l-Estt(A) dated 14.9.1992, 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 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 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.

The recommendations of the D.P.C. of such officers will be kept in a sealed cover. On the conclusion of the disciplinary cases/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover shall be opened. In case, the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover. The Government servant may be promoted notionally with reference to the date of promotion of his Junior. However, if any penalty :is imposed on the Government servant or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover, shall not be acted upon--Para 7 of this O.M. further stipulates that a Government servant who is recommended for promotion by the D.P.C. but in whose case any of the circumstances mentioned above arise after the recommendations of the D.P.C. are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the D.P.C. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also.

The said paragraph 13 of the counter-affidavit contains the reply of paragraph 13 of the writ petition, wherein the Petitioner has stated that in the absence of pendency of the disciplinary proceedings against him on 24.1.1994 when the D.P.C. met, the Respondents cannot withhold his promotion and cannot adopt the procedure of sealed cover. The said paragraph 13 of the counter-affidavit does not controvert in any manner the averments made by the Petitioner in paragraph 15 of the writ petition. Again in paragraph 19 of the writ petition, Petitioner, apart from his challenge to the right of the Respondents to withhold his promotion, has also stated "that to forestall the promotion of the Petitioner, a Departmental Enquiry has been fabricated with bias and mala fide intention with capricious and colourable exercise of power after Departmental Promotion Committee". These allegations have also not been denied in the counter-affidavit, as is clear from paragraph 24 of the counter-affidavit, which contains the reply of paragraph 19 of the writ petition. Paragraph 24 of the counter-affidavit is as under:

That the contents of para 19 of the writ petition, it is stated that the averments of the Petitioner are not correct and misleading. The appointing authority is in the case of D.I.G. for which the Petitioner was considered is the President. The Union Public Service Commission''s recommendations arc advisory in nature and require approval of the appointing authority. The post of D.I.G. falls within the purview of the Appointments Committee of the Cabinet, therefore, the approval of the A.C.C. is necessary before promotion orders are issued.

It is correct that promotion of the Petitioner cannot be withheld unless Departmental proceedings are pending and charge-sheet is issued to an officer. In the present case of Shri R.M. Upadhyaya, the D.P.C. meeting was held in the U.P.S.C. on 24.1.1994. Till that date, no enquiry was pending against him. Therefore, his integrity was certified and his name was recommended by the D.P.C. for promotion as D.I.G. The recommendations of the D.P.C. were also forwarded to M.H.A. for approval of the appointing authority. In the meantime, a Departmental Enquiry under Rule 14 of the C.C.S. (C.C.&A.) Rules, 1965 for certain acts of financial irregularities committed by him while the Petitioner was posted as Commandant in C.I.S.F. Unit, II S.C.O. Burnpur was initiated and charge-sheet memorandum dated 23.6.1994 was served to the officer. Thus, before actual promotion of Shri R. M. Upadhyaya (Petitioner), a Departmental Enquiry was initiated against him. These facts were also communicated to the Appointments Committee of the Cabinet who is the appointing authority for the post of D.I.G.

The Appointments Committee of the Cabinet have not approved promotion of Shri R. M. Upadhyaya, Commandant to the Rank of D.I.G. and intimated vide letter No. 6/51/94-EO (SM-II) dated 1.11.1994 (copy enclosed as C.A. 1) that the D.P.C. recommendations in respect of him be treated as having been placed in sealed cover in accordance with para 7 of D.P. & Trg. O.M. No. 22011/4/91-Estt.(A) dated 14.9.1992. The A.C.C. has approved promotion of remaining 03 officers to the rank of D.I.G.

Similar allegations have been made by the Petitioner in paragraph 21 of the writ petition, which is reproduced below:

That the Petitioner further respectfully submits that withholding of promotion of the Petitioner is wholly motivated and mala fide and for some oblique purpose the promotion of the Petitioner has been withheld.

The reply of paragraph 21 of the writ petition is contained in paragraph 26 of the counter-affidavit, which is as follows:

That the contents of para 21 of the writ petition, it is same as explained in para 9 above.

paragraph 26 of the counter-affidavit merely refers back to paragraph 9 of the same counter-affidavit, which is also reproduced below:

That the contents of para 9 of the writ petition, it is stated that the averments of the Petitioner are not correct and misleading. The appointing authority is in the case of D.I.G. for which the Petitioner was considered is President. The Union Public Service Commission''s recommendations are advisory in nature and require approval of the appointing authority. The post of D.I.G. falls within the purview of the Appointments Committee of the Cabinet, therefore, the approval of the A.C.C. is necessary before promotion orders are issued.

Paragraph 9 of the counter-affidavit contains the reply of paragraph 9 of the writ petition in which the Petitioner has stated about his representation dated 5.12.1994 to the Director General of the Force against withholding of his promotion. The said paragraph 9 of the counter-affidavit does not directly or indirectly controvert or deny the allegations made by the Petitioner in paragraph 21 of the writ petition reproduced hereinbefore.

It is apparent from the perusal of the writ petition and the counter-affidavit filed in reply thereto that although the Respondents have asserted their right to place the decision of the D.P.C. in a sealed cover if the disciplinary inquiry has been initiated against a Government servant before he was actually promoted : but the specific allegations made by the Petitioner in his writ petition to the effect that withholding of his promotion and keeping the recommendation of the D.P.C. in the sealed cover are wholly malafide, motivated and are based on extraneous consideration in order to harm him and to deprive him of the promotion to the post of the D.I.G., have not been disputed and have remained unrebutted, with the result that the same are liable to be accepted as correct. Thus, placing of the recommendations of the D.P.C. for the Petitioner''s promotion in the sealed cover and withholding his promotion to the post of the D.I.G. cannot be justified, being arbitrary and motivated.

The stand of the Petitioner is also corroborated by the letter dated 30.9.1994 written to him by Sri Gautam Kaul, D.I.G. (H.Q.), who conducted the preliminary inquiry against him and has also prepared and served the charge-sheet on him. This letter was written by Sri Kaul in reply to the representation of the Petitioner in which it has been stated that he has been implicated in a false and fabricated departmental inquiry at the time of his promotion. In this letter, Sri Kaul has mentioned that the Petitioner has been victimised and there was no mala fide intention on the part of the Petitioner. The aforesaid letter is reproduced below:

My dear Upadhyaya,

This is with reference to your letter of Sept. 16.1 am afraid no one in C.I.S.F. can help you in your present predicament. 1 know you did not have any mala fide intentions but all the allegations against you are essentially the outcome of possible over-confidence and excess ego. At best, you could help the Inquiry Officer to expedite this matter and get some people from II SCO to cite rules which could support your past actions.

I presume you are continuing to surrender Rs. 1,000 per month as agreed deductions with the II SCO Management.

Your movement now to Anpara is in the direction also to ease some of your domestic problems and I hope you make the best of this situation.

The reference of the said letter and the allegations made in connection therewith are in paragraphs 22 to 25 of the writ petition. The letter itself has been filed as Annexure 5 to the writ petition. The Respondents in paragraphs 27 & 28 of the counter-affidavit, although have not disputed the said letter; but have stated that it was written by Mr. Kaul in his personal capacity and its contents were advisory in nature, having no bearing on the article of charges. The ground taken by the Petitioner that there was no element of misconduct or ill-motive was accordingly denied. When the letter of Sri Kaul, who conducted the preliminary inquiry against the Petitioner and who prepared and served the charge-sheet on him, supports the Petitioner''s stand and almost exonerates him of the charges, it cannot be brushed aside on the ground that it was written by Sri Kaul in his personal capacity. It was open to the Respondents to secure the affidavit of Sri Kaul and file it before the Court. Such a course was available to the Respondents. Reference in this connection may be made to the decision of the Supreme Court in S. Pratap Singh Vs. The State of Punjab, . But no such affidavit of Sri Kaul or any other concerned official denying the aforesaid allegations made in the writ petition has been filed in this Court. Therefore, in view of the allegations made by the Petitioner in the writ petition, which have remained uncontroverted, the impugned action of the Respondents cannot be sustained.

The learned Counsel for both the parties have stated that disciplinary inquiry against the Petitioner has not been completed so far. The result is that for about two years, Petitioner has been deprived of his promotion, although others who were selected alongwith him have been promoted. The fact that the Petitioner is an officer of great merit and has rendered excellent service is clear from the awards and medals given to him, detail of which has been given before. Promotion of such an officer should not have been withheld after he was cleared by the D.P.C. unless the inquiry is instituted on the basis of serious charges. The charges contained in the charge-sheet, which was served to the Petitioner do not inspire confidence. The allegations of the Petitioner to the effect that the charges levelled against him are frivolous and motivated cannot be said to be without substance, specially when the relevant allegations made by him in this connection have remained uncontroverted. The impugned acts of the Respondents, therefore, cannot be sustained. The second contention of the learned Counsel for the Petitioner is accordingly accepted.

This writ petition is allowed with costs. The order dated 25.1.1995 (Annexure III to the writ petition) is quashed. Respondents are directed to open the sealed cover containing the recommendations of the D.P.C. for Petitioner''s promotion and to promote him forthwith to the post of the D.I.G. of the Force on the basis of the said recommendations. Petitioner will be entitled to all benefits including the pay of the promotional post from the date when others, who were selected by the same D.P.C, were granted promotion.