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Judgment
102 paragraphs · 4,604 wordsPradeep Kumar, Member (A)
Applicant is working as Inspector, Central Government Service Tax (CGST) since 09.10.2009. The next promotion lies to the post of Superintendent. It is considered necessary to bring out the background of this OA in para 2 to 11 below.
It appears that his juniors were considered eligible for such promotion on completion of 8 years regular service as of 01.04.2016 while applicant and many others were not considered eligible on the plea that they had joined later and did not have requisite service.
Some similarly placed Inspectors (other than applicant) filed OA No.3405/2014 seeking consideration for promotion to the post of Superintendent as their names were not included in the list of those who were considered eligible for such promotion.
The Tribunal gave certain interim direction on 23.09.2014. These read as under:
"6. In our considered view, if the aforesaid interim order is not granted, it will frustrate the applicants' case. However, at the same time, we do not intend to disturb the alleged eligibility list till this matter is finally decided. We, therefore, direct the respondents to consider the applicants in this OA as a separate block and the DPCs may make appropriate recommendations in their cases for promotion to the aforesaid post. However, the entire recommendations of the DPCs shall be kept in sealed cover and it shall not be given effect to without the leave of this Court. In other words, no appointments shall be made on the basis of the recommendations of the DPCs."
This OA was finally decided on 12.05.2016. Following order was passed:
"31. Thus, in our opinion, the judgment of Full Bench in Garima Singh's case needs to be applied in the instant case as well. When we do so, we find that this case is squarely covered by the same. Consequently, the O.A. is allowed to the extent that the applicants herein deserve to be considered for promotion by granting them relaxation upto 02 years in eligibility service as laid down in O.M. dated 25.03.1996. The eligibility list needs to be redrawn accordingly. In case DPC has already been held and juniors to the applicants promoted then a review DPC needs to be convened and applicants need to be considered for grant of promotion from the date/dates of their immediate junior with consequential benefits of pay fixation and seniority. No costs."
In the meanwhile, applicant and some other similarly placed candidates also filed another OA-1923/2016. This was decided vide order dated 31.05.2016. Following order was passed:
"3. In view of the limited prayer made by the applicants, we dispose of this O.A at the admission stage itself without issuing notice to the respondents and without going into the merits of the case with a direction to the respondents to examine the case of the applicants herein. In case it is found that they are similarly placed as applicants in O.A. No. 3405/2014 then the same benefits be extended to the applicants of this O.A. as were granted to applicants of O.A 3405/2014. This consideration will be done within a period of 60 days from the date of receipt of a certified copy of this order. Decision taken shall be communicated to the applicants by means of a reasoned and speaking order. No costs."
The respondent preferred Writ Petition (C) No.11227/2016 in Hon'ble High Court of Delhi against the judgments in both above OAs. Following interim directions were given on 29.11.2016:
"Be that at it may, in the given circumstances the order of the Tribunal should be complied with. Promotion, if any, will be subject to the outcome of the present application/writ petition."
Hon'ble High Court finally disposed of the Writ Petition (C) No.11277/2016 with following direction on 20.03.2018.
"4.10 xxx xxx xxx
In view of the order dated 29.11.2016, the present applications are disposed of. No further orders are required to be passed in the present applications."
Meanwhile, DPC for said promotion was already held on 30.03.2016 and promotion orders were also issued. The applicant in these two OAs, were not considered as eligible and their case could not be considered by DPC.
Thereafter, the respondents passed an order dated 14.12.2016 in respect of all applicants of OA No.1923/2016 (para 4 supra). Following order was passed:
"xxx xxx xxx
In view of foregoing discussion in paras 3 and 4, the case of applicants in O.A. No.1923/2016 will required to be considered, only after benefit, if any, has been extended to the applicants in O.A. No.3405/2014, as per rules."
Applicant made a representation on 01.01.2018 to respondent no.3 seeking promotion for the post of Superintendent w.e.f. 01.04.2016 in reference to orders as above (para 3 to 5 supra). This was not replied.
The Department preferred CM No.30578/2018 in WP (C) No.11277/2016 (para 5 supra), seeking directions to the respondents (i.e. applicants in two OAs) not to take any coercive steps against the petitioners (Department) during the
pendency of the present petition. The observations and orders passed by Hon'ble High Court on 01.08.2018 read as under:
"2. It is relevant to note that as long back as on 29.11.2016, the predecessor Bench had made it clear that the Court was not inclined to grant any interim relief to the petitioners. Therefore, it was directed that the directions issued by the Tribunal in the impugned order should be complied with. However, a caveat was issued to the effect that the promotion, if any, will be subject to the outcome of the present petition.
Mr. Bhardwaj, learned counsel for the petitioners states that 246 promotions have been effected from the post of Inspector to Superintendent and 12 officers have been left out as vigilance inquiries are pending against them. ....
Xxx xxx xxx
We are of the opinion that having failed to comply with the orders passed on 29.11.2016, the appellants are in contempt of Court. ....
Xxx xxx xxx
Issue notice to the deponent of the affidavit, Mr. Himanshu Gupta, Principal Commissioner of Central GST, New Delhi, calling upon him to explain wilful disobedience of the order dated 29.11.2016."
(Emphasis supplied)
Once above orders were issued by Hon'ble High Court, the review DPC for the original DPC of 30.03.2016 was immediately held on 09.08.2018 for said promotion to the post of Superintendent. This DPC noted as under:
"1.0 The Departmental Promotion Committee (hereinafter referred to as Committee) was informed that in compliance of the Hon'ble Delhi High Court's Interim order dated 29.11.2016 in WP (C) Nos. 11277/2016, 11278/2016 & 11281/2016 in respect of applicants, as well as in view of the Board's direction contained in letter F.No.C-18012/3/2015-Ad.IIB dated 17.11.2017 and subsequent letter F.No. C-18012/3/2015-Ad.IIB dated 17.05.2018 relaxation of upto two years in eligibility service for promotion to the grade of Superintendent may be granted in respect of the Inspectors whose junior has been promoted.
Xxx xxx xxx"
A total of 202 candidates, including the applicant, were considered by this review DPC and the name of applicant appears at Sl. No.44 and was kept in sealed cover. Another candidate immediate junior to applicant Sh. Gajendra Singh Yadav was also considered and was assessed as "Fit" and his name appears at Sl. No.45.
The review DPC also listed the applicant as well as Sh. Gajendra Singh Yadav above one Sh. Anil Kumar, who was already promoted w.e.f. 01.04.2016 as per the original DPC. Accordingly, Sh. Gajendra Singh Yadav was also promoted w.e.f. 01.04.2016.
Applicant pleads that even though his junior was promoted w.e.f. 01.04.2016, he has not been promoted till date on the plea that his name is kept in sealed cover by the review DPC held on 09.08.2018. The applicant pleads that he was completely free of any charge sheet, criminal case or suspension etc. as of 30.03.2016 when DPC was held or as of 01.04.2016 when his juniors were promoted.
Applicant fairly brings out that a major penalty charge sheet was issued to him on 07.02.2017 which was the reason for putting his name in sealed cover by the review DPC held on 09.08.2018. However, this is much later to 01.04.2016 and as such cannot act as impediment to his promotion w.e.f. 01.04.2016 in view of existing OM dated 14.09.1992 and their clarifications given subsequently by DOP&T.
Applicant made a representation dated 18.12.2018. Respondents have brought out in the counter reply submitted on 23.09.2019, that as per provisions of DOP&T OM dated 14.09.1992, that if the circumstances of para 2 of this OM, arise after DPC recommendation, but before actual promotion, the procedure of sealed cover comes into effect.
It is also specifically averred that
"Further, the Applicant was informed vide this office letter dated 13.03.2019 in response to his representation dated 18.12.2018 wherein he was informed that as he has filed OA before the CAT (PB), Delhi in the matter and matter being sub-judice, a final decision can be taken only on conclusion of judicial proceedings."
Accordingly, the representation was rejected vide order dated 13.03.2019.
Feeling aggrieved by such denial, the instant OA has been filed.
The applicant relies upon the three OMs issued by DOP&T vide their letter dated 14.09.1992, 21.11.2002 and 23.01.2014. The relevant parts of the OM dated 14.09.1992 are reproduced below:
"OM dated 14.09.1992
Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation - Procedure and guidelines to be followed. ...
The undersigned is directed to refer to Department of Personnel & Training O.M.No.22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.8.1991 of the Supreme Court in Union of India etc. Vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject (referred to in the margin). The procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this O.M. for their guidance.
At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category 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 criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed 'Findings regarding suitability for promotion to the grade/post of ..........in respect of Shri...........(name of the Government servant). Not to be opened till the terminator of the disciplinary case/criminal prosecution against Shri.......'. The proceeding of the DPC need only contain the note 'The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.
2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.
On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers 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/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enunciate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary.......
Xxx xxx xxx
3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
Xxx xxx xxx
A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. 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.
Xxx xxx xxx"
(Emphasis supplied)
13.1 It appears certain situations arose when review DPCs were conducted. Clarifications were sought. In this regard two OMs were issued on 21.11.2002 and 23.01.2014. Relevant parts are reproduced below:
OM dated 21.11.2002
"The undersigned is directed to refer to the instructions on sealed cover procedure as contained in this Department's OM No.22011/4/91-Estt.(A) dated 14.09.1992 and to say that a question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC. ......"
(Emphasis supplied)
OM dated 23.01.2014
Subject: Comprehensive review of instructions pertaining to vigilance clearance for promotion- clarifications - regarding the undersigned is directed to refer to the Department of Personnel & Training O.M. of even number dated 2.11.2012 on 'Comprehensive review of instructions pertaining to vigilance clearance for promotion', wherein, inter alia, it has been laid down in Para 9, as under:
"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".
This Department has been receiving references seeking clarification on grant of promotion in case of review DPC with regard to the official who is clear from vigilance angle on the date of promotion of the junior in the original DPC but subsequently attracts the provisions contained in para 2 of DoPT OM dated 14.09.92.
The matter has been examined in consultation with the Department of Legal Affairs and it is further clarified that, in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoPT OM dated 14.9.92 get attracted on the date the actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002.
In cases, where the junior is not promoted, it is to be ensured that the provisions of para 7 of OM dated 14.9.1992 are not attracted on the date the official is being actually promoted."
(Emphasis supplied)
The applicant pleads that in view of clarification in para 13.1 supra, since he was clear from all angles as of 01.04.2016 when his junior was promoted as per original DPC held on 30.03.2016, the review DPC held on 09.08.2018 was required to assess him as per position of 30.03.2016 only. It could not have taken into account the later developments. Therefore, the charge sheet dated 09.02.2017 cannot be cited as a reason of putting his name in sealed cover.
Therefore, the sealed cover is required to be opened and acted upon. If he was held as fit, he is required to be promoted w.e.f. 01.04.2016.
The applicant relies upon a judgment by Hon'ble Supreme Court Union of India vs. Anil Kumar Sarkar, (2013) 4 SCC 161.
In this case the respondent who was a Group 'B' officer and was to be considered for empanelment to Group 'A'. DPC was held by UPSC on 26.02.2002 and 27.02.2002 and his name was recommended in the extended select panel. His batchmates including his junior as per this DPC, were promoted to Group 'A' vide orders dated 21.04.2003. However, he was not promoted on the plea that four chargesheets were issued to him: two on 13.08.2003 and one each on 01.09.2003 and 05.11.2003 and with this the sealed cover procedure as per para 7 of DOP&T OM dated 14.09.1992 comes into effect (para 13 supra).
He filed OA with Tribunal, which was dismissed. He filed Writ in Hon'ble High Court of Guwahati, where the order by Tribunal was set aside and writ was allowed to issue appropriate order in favour of the respondent for promotion with all consequential benefits. This was challenged before Hon'ble Apex Court in this case. Hon'ble Apex Court gave ruling as under:
"11. As per paragraph 2 of the said memorandum, at the time of consideration of the Government servants for promotion, the following details of Government servants in the consideration zone for promotion falling in the categories mentioned should be specifically brought to the notice of the DPC, viz., (i) Government servant is under suspension; (ii) Government servant has been served with a charge sheet and the disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC has to apply the 'sealed cover process'. In the case on hand, it is not in dispute that the relevant date is 21.04.2003, when the respondent's batch mates were promoted, admittedly on that date the respondent was not under suspension, no charge sheet was served upon him nor he was facing any criminal prosecution. In such circumstances, in terms of paragraph 2 referred to above, the recommendation of the DPC has to be honored and there is no question of applying 'sealed cover process'.
Xxx xxx xxx
In the light of the above discussion and in view of factual position as highlighted in the earlier paras, we hold that the ratio laid down in Jankiraman's case (supra) are fully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs."
Applicant pleads that this ratio is applicable in his case also as on the date his junior was promoted on 01.04.2016, he was clear from vigilance angle and needs to be promoted. Further, this is in accordance with specific clarifications issued by DOP&T in para 13.1 supra.
Per contra, the respondents opposed the OA. It was pleaded that in the relied upon case of Anil Kumar Sarkar (para 15 supra), he was already assessed by the DPC and was declared as fit for empanelment in Group-A. At that stage no chargesheet was issued to him. His junior who was recommended by the same DPC, was empanelled to Group 'A' on 21.04.2003. However, Sh. Anil Kumar Sarkar's name was left out. The respondents brought out that in the case of Sh. Anil Kumar Sarkar certain incidents were alleged to have happened in the year 1994-95 and it was on the basis of these incidents that investigations were continuing and four chargesheets were issued to Sh. Anil Kumar Sarkar, two on 13.08.2003, and one each on 01.09.2003 and 05.11.2003.
Therefore, when the recommendations of the DPC were implemented by way of empanelment of the junior to Sh. Anil Kumar Sarkar on 21.04.2003, the charge sheet was still not issued to Sh. Anil Kumar Sarkar but his cases were under investigation. Thus, while the junior was promoted Sh. Anil Kumar Sarkar was left out. It is in this context that Hon'ble Apex Court has given their direction as in para 15 supra.
As against this, in the instant case, the scenario is entirely different. When the original DPC met on 30.03.2016, the applicant was not having the eligibility for promotion to the post of Superintendent and accordingly, his name was neither considered nor any recommendations were made for him. Those who were recommended including the juniors to the applicant, were promoted on 01.04.2016.
The applicant herein was considered by the review DPC only on the basis of judicial pronouncement made later. However, by that time a major penalty chargesheet was already issued to him. Accordingly, his case was put in a sealed cover.
It was thus brought out that the circumstances of the relied upon case of Anil Kumar Sarkar (para 15 supra) and that of the instant applicant are entirely different and hence the relied upon judgment is of no help to the applicant.
Under the circumstances, the procedure specified in para 7 of OM dated 14.09.1992 come into force (para 13 supra). Accordingly, sealed cover procedure was adopted at the time of review DPC.
Matter has been heard at length. Sh. Chinmaya Seth and Sh. A.K.Seth, learned counsel represented the applicant and Sh. Rajeev Kumar, learned counsel represented the respondents.
The circumstances under which sealed cover procedure is to be adopted were listed in OM dated 14.09.1992 when the names of eligible persons is considered by the DPC. In case the conditions so warrant, the recommendations for concerned staff are to be put under sealed cover, which is to be opened only after finalization of disciplinary proceedings and if staff is exonerated.
In the instant case, when the DPC met on 30.03.2016, the applicant did not possess the eligibility to be considered and accordingly neither his case could be considered nor any recommendations were made. Thus he was not assessed at all.
By the time review DPC considered the case of the applicant, a major penalty charge sheet was already issued and hence sealed cover procedure was adopted. Therefore, when the DPC considered the case of the applicant, a charge sheet was already issued.
As against this in the relied upon case of Anil Kumar Sarkar (para 15 supra), Sh. Anil Kumar Sarkar was considered and declared fit by the DPC but left out from being promoted when his junior was promoted on the plea that an enquiry was going on even though charge sheet was still not issued. It was under this condition that Hon'ble Apex Court had ordered for promotion of Sh. Anil Kumar Sarkar from the date his junior was promoted.
As against this in the instant case a charge sheet was already issued when the review DPC considered the case of the applicant. Thus, the case of the applicant is distinguishable and the relied upon judgment is of no help to the applicant.
The provisions of OM dated 14.09.1992 in para 7 are very specific wherein an employee needs to be clear on the date an actual promotion is being ordered. In this connection, the Tribunal notes that subsequent to DOP&T OM dated 23.01.2014, (para 13.1 supra), another OM was issued on 28.04.2014 whose provisions were reiterated in OM dated 21.11.2016. The relevant part is reproduced below:
"Sub: Guidelines on treatment of effect of penalties on promotion - role of Departmental Promotion Committee
The Department of Personnel & Training vide its OM of even number dated 28.4.2014 issued instructions on the above subject. Paragraph 7(d), 7(f) and 7(g) of the said OM provides as follows:
7(d) If the official under consideration is covered under any of the three condition mentioned in paragraph 2 of OM dated 14.9.1992, the DPC will assess the suitability of Government servant along with other eligible candidates without taking into consideration the disciplinary case / criminal prosecution pending. The assessment of the DPC including 'unfit' for promotion and the grading awarded are kept in a sealed cover. [Paragraph 2.1 of DoPT OM dated 14.9.1992]"
In keeping with this, the adoption of sealed cover procedure, as adopted in this case, becomes imperative.
The IAS (Appointment by Promotion) Regulation, 1955 provide as under in respect of an officer who may have been included in the select list, but subsequently certain conditions to put his name in sealed cover, get generated. The provision reads:
"5 (5) xxx xxx xxx
Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government."
Thus, irrespective of a junior having been already promoted when such an incident warranting sealed cover, comes to light, the selection remains provisional.
In view of the foregoing, it is the Tribunal's view that adoption of sealed cover procedure, by the review DPC, cannot be faulted.
The Tribunal further notes that in case, on conclusion of said disciplinary proceedings, if there is need to open the sealed cover and if the employee is found to have been adjudged as fit, on opening of such a sealed cover, the promotion needs to be implemented from a date his junior was promoted. Accordingly, the plea of applicant to open sealed cover, prior to conclusion of disciplinary proceedings, is not agreed to, being contrary to the extent rules.
In view of the foregoing, OA is disposed off for action as per para 27 above. No order as to costs.