Full Judgment Text
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CASE NO.:
Appeal (civil) 3691 of 2005
PETITIONER:
Union of India & Ors
RESPONDENT:
Sangram Keshari Nayak
DATE OF JUDGMENT: 27/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Interpretation of a purported circular letter dated 21.01.1993 falls for
our consideration in this appeal which arises out of a judgment and order
dated 31.01.2005 passed by the High Court of Orissa in Writ Petition No. 50
of 2004.
Before embarking upon the said question, we may, however, notice
the admitted fact of the matter.
Respondent was recruited to Indian Railway Traffic Services on or
about 1.02.1982. He was promoted to the post of Junior Administrative
Grade. He was also placed in the selection grade on 1.07.1994. The post of
Senior Administrative Grade fell vacant. Respondent was eligible to be
considered therefor. A Departmental Promotion Committee (DPC) was
convened for preparation of a panel for promotion to the said post.
Respondent’s name was also included therein. Inter alia on the premise that
a vigilance case was pending against him, sealed cover procedure was
adopted by the DPC purported to be in terms of the circular in question
providing for the procedure and guidelines to be followed in respect of the
officers who are to be promoted from Grade B to Grade A and of Railway
officers against whom disciplinary / court proceedings were pending.
Paragraph 6 of the said Circular, which is relevant for our purpose
reads, thus:
"6. 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 Departmental promotion
Committee. He shall not be promoted until the
conclusion of disciplinary case/ criminal
proceedings and the provisions contained in this
letter will be applicable in his case also."
On or about 27.08.1999, one Shri G.P. Srivastava who was immediate
junior to the respondent was promoted to the post of Senior Administrative
Grade but only on 24.09.1999, a departmental proceeding was initiated
against the respondent by issuance of a chargesheet.
An original application filed by the respondent before the Calcutta
Bench of the Central Administrative Tribunal, which was eventually
transferred to the Cuttack Bench, praying for a direction to the appellants to
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promote him to the said post from the date when his junior was appointed,
was allowed by a judgment and order dated 19.08.2003. A writ petition
filed by the appellants thereagainst has been dismissed by the High Court, by
reason of the impugned judgment.
The Tribunal as also the High Court proceeded to determine the issue
on the basis that the term "Government Servant under cloud" would be the
employees against whom a chargesheet has been issued, relying on or on the
basis of paragraph 2 of the said circular, the relevant portion whereof reads
as under:
"2. At the time of consideration of the case of
Government Servants for empanelment, 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;
(iii) Government Servants in respect of whom
prosecution for a criminal charge is pending"
In arriving at its conclusion the High Court furthermore placed strong
reliance upon a judgment of this Court in Union of India and Others v. K.V.
Janakiraman and Others [(1991) 4 SCC 109].
Mr. R. Mohan, learned Additional Solicitor General appearing on
behalf of the appellants would contend that the circular letter received wrong
interpretation at the hands of the Tribunal and/ or the High Court inasmuch
as upon a proper reading thereof it would appear that a complete procedure
has been laid down therein providing for the mode and manner in which the
cases of those officers against whom a charge is pending should be
considered for promotion. Strong reliance in this behalf has been placed on
Union of India and Another v. R.S. Sharma [(2000) 4 SCC 394], Delhi
Development Authority v. H.C. Khurana [(1993) 3 SCC 196], and Union of
India v. Kewal Kumar [(1993) 3 SCC 204].
Mr. S.K. Dholakia, learned senior counsel appearing on behalf of the
respondent, on the other hand, would contend that paragraph 6 of the said
circular must be read in the context of paragraph 2 thereof.
Promotion is not a fundamental right. Right to be considered for
promotion, however, is a fundamental right. Such a right brings within its
purview an effective, purposeful and meaningful consideration. Suitability
or otherwise of the candidate concerned, however, must be left at the hands
of the DPC, but the same has to be determined in terms of the rules
applicable therefor. Indisputably, the DPC recommended the case of the
respondent for promotion. On the day on which, it is accepted at the bar, the
DPC held its meeting, no vigilance enquiry was pending. No decision was
also taken by the employer that a departmental proceeding should be
initiated against him.
Terms and conditions of an employee working under the Central
Government are governed by the rules framed under the proviso appended to
Article 309 of the Constitution of India or under a statute. The right to be
promoted to a next higher post can, thus, be curtailed only by reason of valid
rules. Such a rule again, however, cannot be construed in a manner so as to
curtail the right of promotion more than what was contemplated by law.
Whereas paragraph 6 of the said circular letter provides for a sealed
cover procedure to be adopted by the DPC, the same has to be taken
recourse to only in the event circumstances mentioned in paragraph 2 thereof
arise after the recommendation of the DPC. The recommendations of the
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DPC, therefore, can be refused to be given effect to only inter ala when one
or the other conditions mentioned in paragraph 2 of the said circular stand
satisfied which in the instant case would mean that as against the respondent
a chargesheet had been issued or, in other words, a disciplinary proceeding
was pending. Admittedly, a chargesheet was issued as against him only on
24.09.1999.
Thus, there was no bar in promoting the respondent during the period
14.01.1999 to 27.08.1999. No material was placed before the DPC to take
recourse to the sealed cover procedure. In fact, none existed at the material
time. Paragraph 2 of the said circular specifically refers to submission of
chargesheet as the cut-off date when a departmental proceeding can be said
to have been initiated. Even otherwise such a meaning had been given
thereto by this Court in K.V. Janakiraman (supra) holding:
"16\005The sealed cover procedure is to be resorted
to only after the charge-memo/charge-sheet is
issued. The pendency of preliminary investigation
prior to that stage will not be sufficient to enable
the authorities to adopt the sealed cover procedure.
We are in agreement with the Tribunal on this
point. The contention advanced by the learned
counsel for the appellant-authorities that when
there are serious allegations and it takes time to
collect necessary evidence to prepare and issue
charge-memo/charge-sheet, it would not be in the
interest of the purity of administration to reward
the employee with a promotion, increment etc.
does not impress us. The acceptance of this
contention would result in injustice to the
employees in many cases. As has been the
experience so far, the preliminary investigations
take an inordinately long time and particularly
when they are initiated at the instance of the
interested persons, they are kept pending
deliberately. Many times they never result in the
issue of any charge-memo/charge-sheet. If the
allegations are serious and the authorities are keen
in investigating them, ordinarily it should not take
much time to collect the relevant evidence and
finalise the charges. What is further, if the charges
are that serious, the authorities have the power to
suspend the employee under the relevant rules, and
the suspension by itself permits a resort to the
sealed cover procedure\005"
Reliance placed by Mr. Mohan on R.S. Sharma (supra), in our
opinion, does not advance the appellant’s case. In that case, cases where
sealed cover procedure were applicable were contained in paragraph 2 of the
office memorandum dated 12.01.1988 which reads as under:
"Cases where ’Sealed Cover Procedure’ applicable
.\027At 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
disciplinary proceedings are pending or a decision
has been taken to initiate disciplinary proceedings;
(iii) government servants in respect of whom
prosecution for a criminal charge is pending or a
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sanction for prosecution has been issued or a
decision has been taken to accord sanction for
prosecution;
(iv) government servants against whom an
investigation on serious allegations of corruption,
bribery or similar grave misconduct is in progress
either by CBI or any agency, departmental or
otherwise."
(Emphasis supplied)
Serious allegations of financial misdemeanours were made against the
respondent therein. Central Bureau of Investigation took up investigation.
He was suspended on 10.03.1988. Although the said order of suspension
was revoked, investigation continued. The DPC considered his case for
promotion on 3.04.1991 and resorted to sealed cover procedure. Only in the
aforementioned situation, K.V. Janakiraman (supra) and other decisions
following the same stood distinguished opining that paragraph 7 of the said
office memorandum would be attracted, which is in the following terms:
"Sealed cover applicable to an officer coming
under cloud before promotion .\027A 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 DPC are
received but before he is actually promoted, will
be considered as if his case had been placed in a
sealed cover by DPC. He shall not be promoted
until he is completely exonerated of the charges
against him and the provisions contained in this
OM will be applicable in his case also."
It was held:
"\005One is that, what the Department did not do is
not the yardstick indicated in para 7 of the Sealed
Cover Procedure, what is mentioned therein is that
it cannot apply to the government servant who is
not "actually promoted" by that time. Second is
that, the stand taken up by the Department is that
in spite of deletion of clause ( iv ) of the second
para, the recommendations of DPC must remain in
the sealed cover on account of the conditions
specified in clause ( iii ) of the said paragraph by
virtue of the operation of para 7 thereof. We
cannot say that the said stand was incorrect and,
therefore, we are unable to blame the Department
for not opening the sealed cover immediately after
31-7-1991."
Therein H.C. Khurana (supra) and Kewal Kumar (supra) were
noticed.
In H.C. Khurana (supra), the question was as to what would be the
meaning of the word ’issued’ when a disciplinary proceeding had been
initiated by framing the chargesheet and the same had been despatched.
Paragraph 2 of the circular letter in question was similar to the case of R.S.
Sharma (supra). It is in that context, what would be the meaning of the word
’issued’ when the decision has been taken to initiate disciplinary proceeding
came up for consideration. As the circular contained a provision of that
nature which is absent in the present case, the said decision, in our opinion,
also has no application in the instant case.
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For the self-same reasons, the decision of this Court in Kewal Kumar
(supra) is also not attracted.
This aspect of the matter has recently been considered in Coal India
Ltd. & Ors. v. Saroj Kumar Mishra [(2007) 5 SCALE 724].
We, therefore, are of the opinion that there is no infirmity in the
impugned judgments. Accordingly, the appeal is dismissed with costs.
Counsel’s fee assessed at Rs. 25,,000/-.