Recently, the Supreme Court adjudicated the appeal regarding the denial of promotion to a government servant. The court held that the impugned judgement of the High Court dated April 26, 2013, was based on appropriate consideration of facts and law. The court emphasized that the DPC’s resort to the sealed cover procedure was unjustified, as the prosecution for a criminal charge was not pending at the time of the DPC meeting. Consequently, the appeal was dismissed as lacking merit.
Brief Facts:
In the present case, the appeal arises from the Delhi High Court’s judgement dated April 26, 2013, which dismissed the Union of India’s writ petition challenging the Central Administrative Tribunal’s ruling in Original Application No. 3716 of 2011. The respondent, who was appointed as Assistant Commissioner of Income Tax in December 1987, faced criminal charges under the Indian Penal Code and the Prevention of Corruption Act in 2001. Consequently, during a Departmental Promotion Committee (DPC) meeting held on February 22, 2007, his promotion consideration was impeded due to a withheld vigilance certificate.
In response to the denial of his promotional benefits, the respondent filed Original Application No. 8 of 2011, which the Tribunal allowed, directing the appellants to reconsider his case. However, when the appellants failed to comply, the respondent filed Original Application No. 3716 of 2011, leading to the Tribunal’s order on March 7, 2012, to open the sealed cover regarding his promotion. This order was subsequently challenged in the High Court, which upheld the Tribunal’s decision, promoting the current appeal. Leave was granted on November 16, 2013, with the court requesting the submission of the sealed cover containing the DPC’s recommendations.
Contentions of the Appellant:
The Counsel for the appellant emphasized the relevance of the Office Memorandum (OM) dated September 14, 1992, which outlines the procedure for promoting government servants under investigation or facing disciplinary/court proceedings. The counsel specifically referenced clause (iii) of Para 2, which states that government servants facing pending criminal charges should not be promoted until the resolution of such proceedings.
The counsel argued that the term “pending” should encompass not only formal charges but also cases under investigation, thereby justifying the sealed cover procedure. He suggested adopting the definition of “pendency” from Rule 9(6)(b)(i) of the CCS (Pension) Rules, 1972, which asserts that judicial proceedings are considered instituted when a Magistrate takes cognizance of a police report. Further, the counsel contended that the grant of sanction for prosecution is a critical event indicating that the criminal charge is pending, thus reinforcing the appropriateness of the sealed cover procedure in this case. The counsel concluded by asserting that the department acted correctly in applying the sealed cover procedure, as the FIR was registered on December 31, 2001, the sanction was granted on June 2, 2006 and the DPC meeting occurred in February 2007, clearly within the timeframe indicating pending criminal prosecution.
Contentions of the Respondent:
The counsel for the respondent strongly opposed the appellant’s claims, asserting that the denial of promotion through the sealed cover procedure is inherently illegal. He argued that on the relevant dates, there were no grounds for the respondent’s promotion to be impeded under Para 2 of the OM dated September 14, 1992, as the respondent was neither suspended nor facing any departmental or criminal proceedings.
Further, the counsel referenced the OM dated January 12, 1988, which outlines the criteria for applying the sealed cover procedure. He pointed out that the 1992 OM deliberately excluded the requirement for sealed cover in cases where a sanction for prosecution has been granted, emphasizing that mere sanction does not imply that prosecution is pending. Therefore, he urged the court to uphold the impugned judgment and dismiss the appeal, asserting that the respondent was unjustly denied his promotion.
Issues:
- Whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge is pending against the respondent Government Servant?
- Whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover?
Observation of the Court:
The Court noted that the OM dated September 14, 1992, specifies that the sealed cover procedure applies only to three categories of government servants, including those under suspension or facing disciplinary proceedings, or where prosecution is pending, the court stated “It is clear that it prescribes the conditions under which the assessment done by the DPC is to be kept in the sealed cover. According to this OM, the sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and Government servants in respect of whom prosecution for criminal charge is pending”.
In the case of Union of India v. K.V. Jankiraman, the court clarified that sealed cover procedures can only be used after a charge memo or chargesheet is issued, indicating that preliminary investigations do not suffice. The Ministry of Personnel’s OM dated November 2, 2012, reaffirmed this position, stating that investigation alone does not justify the sealed cover procedure. The court held “Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure”. Given that the Charge sheet against the respondent was filed after the DCP meeting, the court concluded that there was no pending criminal charge at the time of the DCP meeting. Thus, the DCP’s reliance on the sealed cover procedure was unjustified and unsustainable.
The Decision of the Court:
The court decided that the High Court’s judgment dated April 26, 2013, is based on a proper consideration of facts and law, warranting no interference. The ‘Sealed Cover’ presented revealed that the DPC assessed the respondent as ‘FIT’ for promotion, and consequential steps will follow accordingly. Consequently, the appeal is dismissed as lacking merit, with no order as to costs.