Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 78057806 OF 2022
(Arising out of SLP(C) No(s).1408814089 of 2022)
DR. AJIT KUMAR SHRIVASTAVA …APPELLANT(S)
VERSUS
THE STATE OF MADHYA PRADESH
AND OTHERS …RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The appellant, a member of the Indian Forest Services (IFS),
Signature Not Verified
approached the Central Administrative Tribunal, Jabalpur, with the
Digitally signed by
NIRMALA NEGI
Date: 2022.10.21
19:11:59 IST
Reason:
grievance that his candidature was considered for promotion to the
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post of Principal Chief Conservator of Forests in the DPC held on
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12 May, 2020 and the officer junior to him was promoted
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pursuant to the recommendations made by Order dated 4
September, 2020, but without any cause or justification, his
candidature was kept in a sealed cover and mandamus was sought
by him to direct the authorities of the State to open the sealed cover
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which was adopted by the DPC held on 12 May, 2020 as illegal
and pass further orders in accordance with law.
3. The Central Administrative Tribunal, after examining the
complaint of the appellant, arrived at the conclusion that in the
absence of any departmental enquiry instituted/pending under the
All India Services (Discipline and Appeal) Rules, 1969 (hereinafter
referred to as “the Rules 1969”), the authorities were not justified in
keeping the candidature in a sealed cover and accordingly under its
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order dated 13 January, 2022, directed the respondents to open
the sealed cover and give effect to the recommendations made by
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the DPC held on 12 May, 2020 with all consequential benefits.
4. That order of the Tribunal came to be challenged before the
High Court by the respondents by way of a writ petition under
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Article 226 of the Constitution and order of the Tribunal came to be
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set aside on the premise that the show cause notice dated 22
April, 2016 which has been challenged by the appellant before the
Tribunal is pending in OA No.387 of 2019 and because of interim
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order passed by the Tribunal on 11 October, 2019, followed with
later orders, departmental enquiry under the Scheme of Rules 1969
could not have been initiated and thus delay in initiating the
departmental enquiry could not be attributed to the respondents
and accordingly while setting aside the order of the Tribunal dated
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13 January, 2022, directed the Tribunal to decide OA No.387 of
2019 and OA No.76 of 2021 analogous in accordance with law
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under the orders impugned dated 28 April, 2022. The review
petition against the aforesaid order also came to be dismissed by
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the High Court by its order dated 8 July, 2022, which is the
subject matter of challenge in appeals before us.
5. The appellant is an IFS Officer of 1987 Batch. On an alleged
complaint made by some timber merchant, the preliminary enquiry
committee enquired into the complaint and submitted its report on
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17 April, 2016 and accordingly, based on the observations made, a
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nd
show cause notice dated 22 April, 2016 was served upon the
appellant calling for his written explanation failing which
proceedings under the Rules 1969 will be initiated against him.
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The extract of the show cause notice dated 22 April, 2016 is
reproduced hereunder:
“6. Therefore, you Shri Ajeet Shrivastava (IFS) may show
cause within a period of 15 days from the date of receipt of this
letter that why not you may be punished while initiating
proceedings under provisions provided under All India Services
(Discipline and Appeal) Rules, 1969 against you in accordance
with law rules provided under Rule 3(1) and 3(2A) of All India
Services (Conduct) Rules 1968 for conduct adverse act against
the expectation and giving introduction of indiscipline against
the conduct expected from you being a member of IFS in
connection with above allegations?”
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6. The appellant submitted his detailed response dated 24 May,
2016, but no action was taken thereafter and the fact is that
departmental enquiry for minor penalties under Rule 10 or major
penalties under Rule 8 of the Rules 1969 admittedly has not been
initiated against the appellant so far.
7. That earlier, the DPC met for the purpose of promotion to the
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post of Additional Principal Chief Conservator of Forests on 5
February, 2016 and the DPC decided to keep the recommendations
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of the appellant in a sealed cover and of other officers, orders were
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issued on 5 March, 2016.
8. That on some complaint made by an individual person,
enquiry committee was constituted and the veracity of the
complaint was examined by the preliminary enquiry committee
before a regular departmental enquiry instituted under the scheme
of Rules 1969 and because of the later show cause notice dated
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22 April, 2016, the respondents failed to open sealed cover of the
appellant and that was challenged by him in Original Application
No.200/00623/2018 before the Central Administrative Tribunal,
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Jabalpur and came to be decided by an order dated 1 August,
2018 with a direction to the respondents to open the sealed cover
and if the Officer is found fit, he may be promoted from the date
his immediate junior officers were promoted in terms of the
promotion order dated 5th March, 2016, with all consequential
benefits. In compliance thereof, order came to be passed by the
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respondents on 1 August, 2018 promoting him to the post of
Additional Principal Chief Conservator of Forests.
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9. Since no further action was taken by the respondents after the
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show cause notice dated 22 April, 2016 being served, the
appellant challenged the inordinate delay in initiating departmental
action by filing OA No387 of 2019. While the OA remain pending,
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the DPC was held again on 12 May, 2020 to consider the eligible
officers for promotion to the post of Principal Chief Conservator of
Forests and, at this stage, his candidature was kept in sealed cover
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and a person junior to him was promoted by order dated 4
September, 2020.
10. Being aggrieved by the action of the respondents in putting the
candidature of the appellant in a sealed cover, he approached the
Central Administrative Tribunal, Jabalpur by filing a subsequent
OA No.200/00076/2021 seeking direction to the respondents to
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open the sealed cover of the appellant held by the DPC on 12
May, 2020 which is primarily the subject matter of challenge in
appeals before us.
11. We have heard learned counsel for the parties and with their
assistance perused the material on record.
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12. For the misconduct, if any, being committed by an officer
under the All India Services (Conduct) Rules, 1968, the officer can
be subjected to disciplinary enquiry as being contemplated under
the scheme of Rules 1969, which has been framed by the Central
Government in exercise of its power under subSection (1) of
Section 3 of All India Services Act, 1951. That apart other
provisions, under the Disciplinary Rules, schedule of penalties
(minor/major) has been provided under Rule 6 to be imposed on
the member of service for good and sufficient reasons and what
would be the procedure to be followed for imposing minor/major
penalties has been provided under Part IV of the Rules and to be
more particular, procedure for imposing major penalties is provided
under Rule 8 and for minor penalties, the procedure has been
provided under Rule 10 of the Rules 1969.
13. Indisputably, disciplinary enquiry as contemplated under Rule
10 or Rule 8 for minor/major penalties as prescribed under Part IV
of the scheme of the Rules 1969 has neither been instituted nor
pending against the appellant so far. What is pending against him
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is the show cause notice dated 22 April, 2016 served upon him
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pursuant to which he was called upon to submit his explanation
within 15 days, failing which disciplinary proceedings be initiated
against him under the Rules 1969.
14. In reference to the show cause notice, detailed response was
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furnished by the appellant without any delay on 24 May, 2016,
but no action in furtherance thereof has been initiated by the
respondents so far. Thus, it can safely be recorded that no
disciplinary enquiry, as provided under the scheme of Rules 1969,
has either been instituted or pending against the appellant as on
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the date when the DPC met on 12 May, 2020 and candidature of
the appellant was considered for promotion to the post of Principal
Chief Conservator of Forests, but kept in a sealed cover on the
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premise that a show cause notice served upon him on 22 April,
2016 is pending as he has challenged the initiation of show cause
notice in Original Application before the Tribunal and there is an
interim order passed in those proceedings. That being the reason
for which further action of initiating disciplinary proceedings could
not have been initiated against him and that prevailed upon the
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High Court in setting aside the order of the Tribunal under the
order impugned.
15. The respondents have filed a counteraffidavit, in which
annexed to para 9, is a tabulation sheet which indicates that the
proceedings of the departmental enquiry have been referred to and
the chronological dates on which the matter has been processed
and the show cause notice has reached to a stage where
punishment of stoppage of one grade increment without cumulative
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effect is being proposed from 1 December, 2017 and has been
further referred to the Union Public Service Commission for
necessary approval for inflicting punishment under Rule 9(3) of the
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All India Services (Conduct) Rules, 1968 on 24 September, 2019,
but it reveals from the record that the Union Public Service
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Commission by its letter dated 9 October, 2019 referred the matter
to the State Authorities with the following observations:
“No.5/663/2019S.I
Union Public Service Commission
Single Window System
ServicesI Branch
Date: 09/10/2019
Subject:
Disciplinary Proceeding case against Shri Ajit Kumar
Shrivastava, IFS, M.P. Govt.
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State Government of Madhya Pradesh have forwarded the
disciplinary case of for consideration advice of
Sh. Ajit Shrivastava
the Commission through window system on .
09/10/2019
2. On scrutiny of the case, the following deficiency(ies) has/have
been found and this has been informed to the representative of the
State Government of Madhya Pradesh namely Shri Amitabh
Agnihotri ADDL.PCCF.
(i) Any other deficiency pointed out during scrutiny at
SWS.
(ii) (a) The Disciplinary Authority has considered the merits of
the case and come to the conclusion that a formal penalty is
called for, is not available. The same may be provided with the
approval of the Disciplinary Authority, (b) It is not clear under
which specific rule the charge memorandum was issued. This
may be clarified. (c) It has not been indicated as to whether
charge memorandum was issued with the approval of
Competent Authority, (d) ACR folder is not available. The same
may be provided, (e) Present status of the pending court case,
along with the next date of hearing may be provided.
3. In view of the above mentioned documentary deficiency(ies),
the case is returned herewith, with the request to make a fresh self
contained reference with complete case records, after removing the
deficiency (ies).
M D Meena
ASO Sd/
Dated: Under Secretary”
09/10/2019
16. When we put the question to learned counsel for the State as
to what proceedings have been instituted subsequent to the notice
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dated 22 April, 2016 served upon the appellant in reference to
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which a detailed response was submitted by him on 24 May, 2016
and any disciplinary action has been instituted or whether the
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procedure for imposing minor penalties as referred to under Rule
10 of the Rules 1969 has been initiated against the appellant, no
such record has been made available to us except the procedure
which has been followed by the State Authorities to which
reference has been made in para 9 of counter affidavit, which,
according to the respondents, is the mechanism adopted in
concluding disciplinary enquiry at their end.
17. In our considered view, in the absence of a disciplinary action
for imposing minor/major penalties as contemplated under Rule
10 or Rule 8 of the Rules 1969 either initiated or pending, there
could not be any occasion of proposing the penalty to be inflicted
upon the delinquent officer and what is being projected by the
respondents in para 9 of its counter affidavit of which reference
has been made of proposing penalty to be inflicted upon the
appellant, in the given facts and circumstances, is nothing but
putting a cart before the horse.
18. Before a disciplinary enquiry being initiated in terms of the
procedure prescribed under Rules 1969, there could not be any
possibility of proposing a punishment as being contemplated under
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Rule 6 of the Rules 1969 and that could have been possible after
the authorities have applied its mind in inflicting penalty for good
and sufficient reasons. Neither the procedure as being known to
the scheme of Rules 1969 nor further action, if any, initiated has
been placed on record. The stage to inflict penalty upon the
appellant, in the given facts and circumstances, does not arise.
19. The defence of the respondents that because the appellant
preferred OA before the Tribunal in questioning the show cause
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notice dated 22 April, 2016 served upon him and because of
interim stay passed by the Tribunal, the respondents remain
precluded from proceeding to conclude the disciplinary enquiry, in
our considered view, is nothing but a lame excuse and no adverse
presumption can be drawn that because of pendency of OA filed by
the appellant before the Tribunal in questioning the show cause
notice, the delay caused in initiation of departmental enquiry be
attributable to the appellant, even if that is taken as a justification
tendered by the respondents, still the fact remains that no
disciplinary enquiry as contemplated under the scheme of Rules
1969 has so far either been instituted or pending against the
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appellant. In absence thereof, there was no justification for the
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DPC held on 12 May, 2020 to keep the candidature of the
appellant in sealed cover and grant promotion to a person junior to
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him by order dated 4 September, 2020.
20. Consequently, the appeals deserve to succeed and are
accordingly allowed. The orders passed by the High Court dated
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28 April, 2022 followed with 8 July, 2022 are hereby set aside.
The respondents are directed to open the sealed cover of the DPC
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held on 12 May, 2020 qua the appellant for the post of Principal
Chief Conservator of Forests (PCCS) and pass further orders in
accordance with law with all consequential benefits in terms of the
order of the Tribunal. Necessary compliance be made within two
months. No costs.
21. Pending application(s), if any, shall stand disposed of.
….…………………………J.
(AJAY RASTOGI)
…………………………….J.
(C.T. RAVIKUMAR)
NEW DELHI
OCTOBER 21, 2022.
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