Union of India (UOI) vs Shri Om Prakash

Madan B. Lokur, J.—The Petitioner is aggrieved by an order dated 3rd June, 2006 passed by the Central Administrative Tribunal, Principal Bench in OA No. 1185/2007.

The Respondent was working as a Public Relations Officer in Grade-III with the Ministry of External Affairs. It appears that a case was registered against him by the Central Bureau of Investigation (CBI) sometime in August, 2004.

Investigations were going on in the Respondent�s case when his name came up for consideration for promotion. The Departmental Promotions Committee (DPC) met on 9th February, 2007 and recommended his promotion. A select list was then drawn up on 22nd February, 2007 on the basis of the recommendations of the DPC.

For one reason or another, the promotions recommended by the DPC could not be physically effected. In the meanwhile, on 9th March, 2007 the Central Government gave sanction to the CBI to prosecute the Respondent. On the basis of this sanction, the promotion of the Respondent was withheld but the others were granted physical promotion on 15th June, 2007.

Feeling aggrieved by this turn of events, the Respondent challenged the order dated 15th June, 2007 and prayed in the Original Application filed before the Central Administrative Tribunal u/s 19 of Administrative Tribunals Act, 1985 that he is entitled to be promoted in terms of the select list drawn up by the DPC.

The Tribunal accepted the contentions of the Respondent and directed that his promotion be made in accordance with the recommendations of the DPC. Feeling aggrieved by the order passed by the Tribunal, the Petitioner has preferred the present writ petition.

Learned Counsel for the Petitioner has drawn our attention to Union of India Vs. Kewal Kumar, to contend that the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., approved the adoption of a deemed sealed cover procedure in the case of persons whose prosecution has been sanctioned. It is submitted, on this basis, that the Petitioner has not committed any error in denying physical promotion to the Respondent.

Learned Counsel for the Respondent has drawn our attention, and in our opinion quite rightly, to the fact that Jankiraman dealt with the Office Memorandum dated 12th January, 1988. In terms of the 1988 Office Memorandum, it was made clear that a Government servant in respect of whom a prosecution for a criminal charge is pending or sanction has been issued or a decision has been taken to accord sanction for prosecution will be subjected to the deemed sealed cover procedure. A few years later, the Central Government reviewed the entire position keeping in mind the Office Memorandum dated 12th January, 1988 as well as the decision of the Supreme Court in Jankiraman and issued a fresh Office Memorandum on 14th September, 1992. By the said Office Memorandum, the earlier Office Memorandum dated 12th January, 1988 was specifically superseded.

The 1992 Office Memorandum also deals with cases of Government servants to whom the sealed cover procedure is applicable. In paragraph 2 of the Office Memorandum, it is stated as follows :

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 the 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.

No doubt the above paragraph deals with cases that are brought to the notice of the DPC. However, it is necessary to read this with paragraph 7 of the 1992 Office Memorandum which is equally relevant. Paragraph 7 deals with the sealed cover procedure applicable to officers coming under a cloud after the holding of a DPC but before actual promotion. Paragraph 7 of the Office Memorandum dated 14th September, 1992 reads as follows :

Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion.

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 or the charges against him and the provisions contained in this OM will be applicable in his case also.

Even a casual perusal of the above two paragraphs of the Office Memorandum dated 14th September, 1992 shows that there is no provision made therein for adopting the sealed cover procedure or a deemed sealed cover procedure in cases in which only sanction is accorded for prosecution. This is in stark contrast to such a specific mention and provision made in the Office Memorandum dated 12th January, 1988.

It appears to us that the Central Government, while framing the Office Memorandum dated 14th September, 1992 specifically and consciously deleted the requirement of a sealed cover procedure or a deemed cover procedure in respect of Government servants in respect of whom sanction for prosecution is granted. It is not clear why the Central Government has taken such a view, but it is not for us to comment on this or on the correctness of the view consciously taken by the Central Government.

Under these circumstances, it appears to us quite clear that since there is no rule or Office Memorandum which entitles the Petitioner to withhold the physical promotion of the Respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the Respondent.

We are in agreement with the view expressed by the Tribunal that in the absence of any rule permitting the withholding of the Respondent�s promotion, a direction should be issued to the Petitioner to give effect to the recommendations of the DPC and to promote the Respondent from the date his juniors were promoted with all consequential benefits as may be admissible under the Rules.

We find no merit in the writ petition. Accordingly, it is dismissed.