W.P.(C)/4322/2012 of GOVT. OF NCT OF DELHI THROUGH THE CHIEF SECRETARY AND ANR Vs ANIL KAUSHAL

THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) No.4322/2012

Judgment reserved on: 23.07.2012

Judgment pronounced on: 03.09.2012

GOVERNMENT OF NCT OF DELHI & ORS.

….. Petitioners

ANIL KAUSHAL

versus

….. Respondent

Advocates who appears in this case:For the PetitionersFor the Respondent

: Ms Avnish Ahlawat.: Mr Ajesh Luthra.

CORAM:

HON’BLE MR JUSTICE BADAR DURREZ AHMEDHON’BLE MR JUSTICE SIDDHARTH MRIDUL

J U M N T

SIDDHARTH MRIDUL, J.

1.The present petition challenges the order dated 23.03.2012 passed bytheCentralAdministrativeTribunal,PrincipalBench,NewDelhi(hereinafter referred to as ‘Tribunal’) whereby the Tribunal while allowingO.A. No.4529/2011 filed by the respondent herein issued directions to thepetitioner (Government of NCT of Delhi) to hold review DepartmentalPromotion Committee (DPC) in order to consider the respondent for

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promotion to the ex-cadre post of DANICS on ad hoc and emergent basis

from the date his juniors were so promoted.

2.The facts as are necessary for the adjudication of the present petitionare adumbrated below:-

(i)The respondent, Anil Kaushal, is Grade-I (DASS) Officer,

which is feeder cadre for promotion to the ex-cadre post ofDANICS. The promotion to the post of DANICS is made underthe aegis of Ministry of Home Affairs, Government of India asper the seniority in the feeder cadre.DANICS. The promotion to the post of DANICS is made underthe aegis of Ministry of Home Affairs, Government of India asper the seniority in the feeder cadre.

(ii)On 06.04.2011, the Services Department of the petitioner

initiated the process for making appointments against the ex-

cadre posts of DANICS on ad hoc and emergent basis, and for

this purpose the heads of various Government departments wereasked to provide ACRs of eligible Grade-I (DASS) Officers.

(iii)The Services Department of the petitioner once again circulateda list vide its communication dated 25.07.2011, through whichthe relevant ACRs of eligible Grade-I (DASS) Officers wererequisitioned at the earliest.a list vide its communication dated 25.07.2011, through whichthe relevant ACRs of eligible Grade-I (DASS) Officers wererequisitioned at the earliest.

(iv)It is an admitted position that the said list dated 25.07.2011

contained the name of the respondent at Serial No.79, therebyindicating that the respondent fell in the zone of consideration.indicating that the respondent fell in the zone of consideration.

(v)However, on 19.10.2011, the petitioner vide order bearingNo.467 made 106 appointments to the ex-cadre posts ofDANICS on ad hoc and emergent basis. In the said order thename of the respondent was left out, although his immediatejuniors were promoted.No.467 made 106 appointments to the ex-cadre posts ofDANICS on ad hoc and emergent basis. In the said order thename of the respondent was left out, although his immediatejuniors were promoted.

3.The respondent on not being promoted approached the Tribunalassailing the said order dated 19.10.2011.

4.The respondent in his said O.A. before the Tribunal averred thatpromotions made by virtue of the order dated 19.10.2011 were based on therecommendations of the DPC which had been convened on or before19.10.2011 and that till that date no disciplinary or criminal proceedingswere commenced against him and, therefore, the petitioner’s action ofdenying the respondent his promotion was bad in law and liable to be setaside.

5.In reply, the petitioner submitted before the Tribunal that the reasonbehind denying promotion to the respondent was essentially the letter of theVigilance Department dated 15.09.2011. It was stated that the contents of thesaid letter dated 15.09.2011 indicate that the Revenue Department hadrecommended the respondent for major penalty proceedings, although nocharge-sheet had been issued against the respondent till the time the saidDPC was held.

6.It is an admitted position that the DPC meeting based on which thepromotions were made was convened on or before 19.10.2011 and that thepetitioner had instituted disciplinary proceedings against the respondent onlyon 27.10.2011, i.e., when charge-sheet was issued to him. Thus, it isaxiomatic that the charge-sheet was issued much later in point of time inrelation to the holding of the DPC, which made the promotions.

7.The learned counsel for the petitioner urged before us that the stand ofthe Government in not promoting the respondent is unassailable, inasmuchas, prior to the recommendation of the DPC dated 19.10.2011, the RevenueDepartment had made up its mind to start major penalty proceedings againstthe respondent, as is evident from the letter dated 25.09.2011 issued by theVigilance Department.

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8.The petitioner justified its action by relying upon the followingdecisions:-

(i)Delhi Development Authority vs. H.C.Khurana, (1993) 3 SCC196.196.

(ii)Union of India vs. Kewal Kumar, (1993) 3 SCC 204.

(iii)Food Corporation of India and Another vs. Abhay Ram,(2002) 10 SCC 455.(2002) 10 SCC 455.

Predicated on the above decisions it was argued that once the

department had made up its mind to institute disciplinary proceedingsagainst delinquent officer, the latter could not be considered by the DPCfor promotion, even if the charge-sheet came to be issued subsequent to themeeting of the DPC. Therefore, the denial by the petitioner in consideringthe respondent for promotion was valid, legal and justified in view of thecommunication dated 15.09.2011.

10.Per contra, the learned counsel for the respondent invited our attentiontoDoPT’sOMNo.22011/2/86-Est.(A)dated12.01.1988andOMNo.22011/4/91-Estt.(A) dated 14.09.1992. The learned counsel also reliedupon the judgement inUnion of India and Ors. vs. K.V.Jankiraman andOrs., (1991) 4 SCC 109.

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11.It would be necessary to extract the relevant portion of the DoPT’sOMsdated12.01.1988and14.09.1992inordertoappreciatethesubmissions made on behalf of the respondent. The relevant paragraph 2 ofthe OM dated 12.01.1988 and the substituted Clause (ii) of paragraph 2 in

OM dated 14.09.1992 are as under:-

“2. Cases of Government servant to whom Sealed CoverProcedure will be applicable.– At the time of consideration ofthe cases of government servants for promotion, details ofgovernment servants in the consideration zone for promotionfalling under the following categories should be specificallybrought to the notice of the Department Promotion Committee:

(i)Government servants under suspension;

(ii)Government servants in respect of whom disciplinaryproceedings are pending or decision has been takento initiate disciplinary proceedings;proceedings are pending or decision has been takento initiate disciplinary proceedings;

iii)Government servant in respect of whom prosecutionfor criminal charges is pending or sanction forprosecution has been issued or decision has beentaken to accord sanction for prosecution;for criminal charges is pending or sanction forprosecution has been issued or decision has beentaken to accord sanction for prosecution;

iv)Government servants against whom an investigation onserious allegations of corruption, bribery or similargrave misconduct is in progress either by the CBI orany other agency, departmental or otherwise.”serious allegations of corruption, bribery or similargrave misconduct is in progress either by the CBI orany other agency, departmental or otherwise.”

The substituted Clause (ii) in paragraph 2 of OM dated 14.09.1992

reads as under:-

“(ii)Government servants in respect of whom charge-sheethasbeenissuedandthedisciplinaryproceedings are pending; and”sheethasbeenissuedandthedisciplinaryproceedings are pending; and”

From plain reading of the above, it is evident that the words “a

decision has been taken to initiate disciplinary proceedings” in OM dated12.01.1988 has been substituted with the words “a charge-sheet has beenissued” in OM dated 14.09.1992. The above substitution clearly indicatesthat pursuant to the coming into force of the OM dated 14.09.1992 the sealedcover procedure will be applicable only in the case of those delinquentofficers against whom charge-sheet has been issued. After the coming intoforce of the said OM dated 14.09.1992, the fact that the concerned authorityhad resolved to initiate enquiry against Government officer would be of noconsequence.

13.In K.V.Jankiraman’s case (supra), the Supreme Court dealing withthe question of when disciplinary proceeding is initiated observed asfollows:-

“16.………..itisonlywhenacharge-memoinadisciplinaryproceedingsoracharge-sheetinacriminalprosecution is issued to the employee that it can be said that thedepartmentalproceedings/criminalprosecutionisinitiatedagainst the employee. The sealed cover procedure is to beresorted to only after the charge-memo/charge-sheet is issued.The pendency of preliminary investigation prior to that stage willnot be sufficient to enable the authorities to adopt the sealedcover procedure. We are in agreement with the Tribunal on thispoint. The contention advanced by the learned counsel for theappellant-authorities that when there are serious allegations andit takes time to collect necessary evidence to prepare and issue

charge-memo/charge-sheet, it would not be in the interest of thepurity of administration to reward the employee with apromotion, increment etc. does not impress us. The acceptanceof this contention would result in injustice to the employees inmany cases. As has been the experience so far, the preliminaryinvestigations take an inordinately long time and particularlywhen they are initiated at the instance of the interested persons,they are kept pending deliberately. Many times they never resultin the issue of any charge-memo/charge-sheet. If the allegationsare serious and the authorities are keen in investigating them,ordinarily it should not take much time to collect the relevantevidence and finalise the charges. What is further, if the chargesare that serious, the authorities have the power to suspend theemployee under the relevant rules, and the suspension by itselfpermits resort to the sealed cover procedure. The authoritiesthus are not without remedy………”

14.In subsequent decisions, namely,Union of India vs. SangramKeshari Nayak, (2007) 6 SCC 704 andUCO Bank and Anr. vs. RajinderLal Capoor, (2007) 6 SCC 694, the Supreme Court has held that “thedepartmental proceeding, it is trite law, is not initiated merely by issuance ofa show cause notice. department proceeding is ordinarily said to beinitiated only when charge-sheet is issued.”

15.Now coming to the decisions relied upon by counsel for the petitioner,

it is observed that, the decision in H.C.Khurana’s case (supra) onlyconsidered the OM dated 12.01.1988. In that decision the question before theSupreme Court was with regard to the meaning of the word ‘issued’. TheSupreme Court had observed that the word ‘issued’ indicates dispatch of the

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charge-sheet to the Government servant irrespective of its actual service onhim. The said decision does not come to the aid of the petitioner.

16.Similarly, in Kewal Kumar’s case (supra),the Supreme Courtconsidered the OM dated 12.01.1988, and held that when the competentauthority takes the decision to initiate the disciplinary proceedings or stepsare taken for launching the criminal proceedings against the Governmentservant, the latter cannot be given the promotion, unless exonerated. Thisdecision too deals with the earlier OM of 1988 and, therefore, does not applyto the facts of the present case.

17.Abhay Ram’s case (supra), on which reliance has been placed by thepetitioner, again does not further the case of the petitioner. In that casealthough the Supreme Court considered the OM dated 14.09.1992, thecharge-sheet had been issued to the delinquent Government officer on thesame day as the convening of the DPC, but before the DPC took place. Inthat case it is relevant to note that the Government servant had been placedunder suspension immediately after the direction of the competent authorityto initiate disciplinary proceedings and the said action occurred prior to theconsideration of the delinquent Government officer by the DPC.

18.In the present case it is observed that neither charge-sheet had beenissued to the respondent nor was he placed under suspension prior to themeeting of the DPC on or before 19.10.2011. The charge-sheet was onlyissued to the respondent later on 27.10.2011. Therefore, it is obvious that therespondent was not under the cloud of any order of suspension or ordersinitiating disciplinary proceedings or criminal proceedings on the date onwhich the DPC held its meeting and submitted its recommendations, i.e.,19.10.2011.

19.In view of the above the present petition is devoid of merit and ishereby dismissed. There shall be no order as to costs.

SIDDHARTH MRIDUL, J.

SEPTEMBER 03, 2012mk

BADAR DURREZ AHMED, J.