Legally Bharat

Supreme Court of India

Union Of India vs Shri Doly Loyi on 24 September, 2024

Author: Pamidighantam Sri Narasimha

Bench: Pamidighantam Sri Narasimha

2024 INSC 729                                                     NON-REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION

                                      CIVIL APPEAL NO(S). 8387 OF 2013



             UNION OF INDIA AND ORS.                                .…APPELLANT(S)



                                                    VERSUS



             DOLY LOYI                                             ...RESPONDENT(S)



                                              JUDGMENT

Mehta, J.

1. The instant appeal by special leave takes exception to the

judgment dated 26th April, 2013 passed by the High Court of Delhi

in Writ Petition(C) No. 7960 of 2012 whereby the writ petition

preferred by the appellant herein i.e., the Union of India was

dismissed and the order passed by Central Administrative

Tribunal, Principal Bench, New Delhi(hereinafter being referred to
Signature Not Verified

as ‘Tribunal’) was upheld, whereby the Tribunal allowed Original
Digitally signed by
Indu Marwah
Date: 2024.09.24
16:16:52 IST
Reason:

1
Application No. 3716 of 2011 filed by the respondent herein

challenging the denial of promotional benefits to him.

2. The brief facts in a nutshell relevant and essential for the

disposal of the instant appeal are noted hereinbelow.

3. The respondent was appointed as Assistant Commissioner of

Income Tax on 16th December, 1987. He was granted due

promotions to the post of Deputy Commissioner of Income Tax,

Joint Commissioner of Income Tax, and Additional Commissioner

of Income Tax in December 1991, July 2001, and November 2001,

respectively. On 31st December, 2001, an FIR was registered

against the respondent for the offences punishable under Section

120B of the Indian Penal Code, 1860, and Sections 13(1) and

13(1)(d) of the Prevention of Corruption Act, 1988, alleging inter

alia that the respondent, while working as the Special

Secretary(Finance), Government of Arunachal Pradesh acted in

conspiracy with other officers and committed criminal misconduct

by abusing his position as a public servant. A sanction dated 2nd

June, 2006, was accorded by the CBDT (Department of Revenue,

Ministry of Finance, Government of India) for the prosecution of

the respondent in respect of the aforesaid allegations before the

concerned Court.

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4. Thereafter, on 22nd February, 2007, the Departmental

Promotion Committee (hereinafter being referred to as ‘DPC’) was

convened to consider the promotion of Additional Commissioner of

Income Tax to the post of Commissioner of Income Tax. Since the

respondent had attained eligibility for promotion to the post of

Commissioner of Income Tax, his case was also considered for

promotion by the DPC. However, the vigilance certificate of the

respondent was withheld and the recommendations of the DPC

with regard to the promotion of the respondent were kept in a

sealed cover on the basis that the ‘Prosecution for criminal charge’

was pending against him, and thus, he was deprived from being

considered for promotion along with his batchmates.

5. Being aggrieved by the withholding of the vigilance clearance

and adoption of the sealed cover procedure, the respondent filed

Original Application No. 8 of 2011 before the Central

Administrative Tribunal, Guwahati Bench. Original Application No.

8 of 2011 was allowed vide order dated 28th June, 2011 and the

appellants were directed to consider the case of the respondent and

pass a reasoned order within two months. In compliance of the said

direction, the appellants considered the case of the respondent for

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promotion and vide communication dated 15th September, 2011,

rejected the same holding that there was no justification for the

opening of ‘Sealed Cover’ and considering the case of the

respondent herein for promotion along with his batchmates.

6. The order dated 15th September, 2011 was challenged by the

respondent before the Central Administrative Tribunal, Principal

Bench, New Delhi by preferring Original Application No. 3716 of

2011. The Tribunal vide order dated 7th March, 2012 allowed the

aforesaid Original Application, quashed the communication dated

15th September, 2011, and directed the appellants herein to open

the sealed cover adopted in the case of promotion of the respondent

and give effect to the same, and if he was found fit for promotion,

then to promote him and also award back wages with costs

quantified at Rs. 10,000/-.

7. Challenging the order dated 7th March, 2012, the appellants

herein filed Writ Petition(C) No. 7960 of 2012 before the learned

Division Bench of High Court of Delhi, which stands rejected vide

order 26th April, 2013. The said order is subjected to challenge in

this appeal by special leave.

8. Leave was granted by this Court on 16th November, 2013.

Learned senior counsel appearing for the appellants was directed

4
to produce the ‘Sealed Cover’ containing the recommendation of

DPC in relation to the respondent vide order dated 13th June, 2024

and the same was submitted by the learned counsel for the perusal

of this Court.

Submissions on behalf of the appellants: –

9. Shri Wasim Qadri, learned senior counsel appearing on behalf

of the appellants drew the Court’s attention towards the Office

Memorandum (in short ‘OM’) dated 14th September, 1992 dealing

with the ‘Promotion of Government servants against whom

disciplinary/court proceedings are pending or whose conduct is

under investigation-Procedure and guidelines to be followed’. The

extract of the OM dated 14th September, 1992 relied upon by the

learned counsel for the appellants is reproduced below:-

“2. At the time of consideration of the cases of Government
servant for promotion, details of Government servant in the
consideration zone for promotion falling under the following
category 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 criminal charge is pending.

2.1 The Departmental Promotion Committee shall assess the
suitability of Government servants coming within the
purview of the circumstances mentioned above along with
other eligible candidates without taking into consideration
the disciplinary case/criminal prosecution pending. The

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assessment of the DPC including ‘unfit for promotion’ and the
grading awarded by it will be kept in a sealed cover. The cover
will be superscribed ‘Findings regarding suitability for promotion
to the grade/post of of Shri.. …in respect (name of the Government
servant). Not to be opened till the termination of the disciplinary
case/criminal prosecution against Shri…….’. The proceeding of
the DPC need only contain the note. The findings are contained in
the attached sealed cover’. The authority competent to fill the
vacancy should be separately advised to fill the vacancy in the
higher grade only in an officiating capacity when the findings of
the DPC in respect of the suitability of a Government servant for
his promotion are kept in a sealed cover.”
(emphasis supplied)

10. Learned counsel, while placing emphasis on clause(iii) of Para

No. 2 i.e. ‘Government servants in respect of whom prosecution

for a criminal charge is pending’ submitted that this expression

has to be read in light of the object sought to be achieved i.e. a

tainted officer should not be allowed to be promoted till the cloud

is clear and during this period, the sealed cover procedure is to be

adopted.

11. He submitted that the said OM does not specifically indicate

as to before which forum or at what stage, the prosecution for

criminal charge is required to be pending in order to attract the

sealed cover procedure and thus, this expression should be

interpreted in a wider sense to even cover a case in which

investigation for a criminal charge is pending with the Investigating

Agency.

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12. He further submitted that the said OM does not specify the

stage when the prosecution for a criminal charge can be stated to

be pending and hence the definition of pendency of judicial

proceedings provided in Rule 9(6)(b)(i) of the CCS(Pension) Rules,

1972, should be adopted, which provides that the judicial

proceedings shall be deemed to be instituted in the case of criminal

proceedings, on the date on which the complaint or report of Police

officer, of which Magistrate takes cognizance is made. The relevant

portion of the extant rules as relied upon by the learned counsel is

as below:

“(b) Judicial proceedings shall be deemed to be instituted–

(i) in the case of criminal proceedings, on the date on which
the complaint or report of a Police Officer, of which the
Magistrate takes cognizance, is made.”

13. He further submitted that in a criminal prosecution, the

sanction for prosecution whether under Section 197 of Code of

Criminal Procedure, 1973 or Section 19 of the Prevention of

Corruption Act, 1988 is an event of utmost importance relating to

the criminal charge as the sanction is accorded by the concerned

authority on the basis of contents of FIR and the entire material

collected during the course of investigation. He thus urged that

7
once the sanction is granted, the prosecution for criminal charge

can be said to be pending.

14. He concluded his submissions by urging that the department

was justified in invoking the sealed cover procedure while

considering the case of the respondent for promotion, since, the

FIR was lodged on 31st December, 2001 and sanction was granted

on 2nd June, 2006, whereas, the DPC was convened in the month

of February 2007, which is well after the lodging of FIR and grant

of sanction, thus, the case of respondent falls under clause(iii) of

Para No.2 i.e. ‘Government servants in respect of whom

prosecution for the criminal charge was pending’.

On these grounds, the learned counsel for the appellants

implored this Court to set aside the impugned judgment and allow

the appeal.

Submissions on behalf of the Respondent: –

15. Per contra, learned counsel for the respondent, vehemently

and fervently opposed the submissions advanced by learned

counsel for the appellants and urged that the denial of promotion

to the respondent by resorting to ‘the sealed cover procedure’ is ex-

facie illegal and bad in eyes of law.

8

16. He submitted that on the relevant date of DPC being convened

as well as on the date of issuance of the promotion orders whereby

the batchmates of the respondent were promoted, there was no

impediment in the promotion of the respondent in terms of Para

No. 2 of OM dated 14th September, 1992(reproduced supra), as the

respondent’s case does not fall under any of the three clauses

enumerated in the said Para. The respondent was not placed under

suspension; no departmental proceedings were ever initiated

against the respondent and no criminal charge was pending

against him and thus the restrictive clauses would not ex-facie

operate against the respondent’s right to be considered for

promotion.

17. He further drew the Court’s attention to clause(iii) of Para No.

2 of OM dated 12th January, 1988, as per which the sealed cover

procedure could be adopted with regard to a Government servant

in respect of whom the prosecution for a criminal charge was

pending or sanction for prosecution had been issued or a decision

had been taken to accord sanction for prosecution. The relevant

para of OM dated 12th January, 1988 is reproduced hereinbelow:

9

“Cases of Government Servants to whom Sealed Cover
Procedure will be applicable.

2. 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 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 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 the CBI or any other agency,
departmental or otherwise.”
(emphasis supplied)

He thus urged that the Central Government, while framing the

OM dated 14th September, 1992, specifically and consciously

deleted the requirement of a sealed cover procedure in respect of

Government servants against whom the sanction for prosecution

is granted as was mentioned in the second part of clause(iii) of Para

2 of the earlier OM of 1988. He contended that by mere grant of

sanction, the prosecution for a criminal charge could not be said

to be pending against a government servant.

10

18. On these grounds, he urged that the impugned judgment

doesn’t suffer from any infirmity and implored the court to dismiss

the appeal.

19. We have given our thoughtful consideration to the

submissions advanced at bar and have perused the impugned

judgments. With the assistance of learned counsel for the parties,

we have thoroughly examined the material available on record.

Discussion and Conclusion: –

20. The core issue for consideration before this Court is: “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 and whether grant of sanction for

prosecution could be a valid ground for putting the DPC

recommendations in a sealed cover”?

21. On a bare perusal of OM dated 14th September, 1992, which

covers the issue, 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

11
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.

22. Learned counsel for appellant made a pertinent submission

that the case of the respondent falls under the third clause of the

above OM, i.e. Government servants in respect of whom

prosecution for criminal charges is pending. Thus, the question

requiring consideration is as to whether a mere grant of

prosecution sanction would be sufficient to infer that the

prosecution for a criminal charge was pending against the

respondent. Similar issue came up for consideration before this

Court in the case of Union of India v. K.V. Jankiraman1, wherein

it was held that sealed cover procedure is to be resorted to only

after the charge memo/charge sheet is issued. The relevant extract

is reproduced hereinbelow:

“16. On the first question, viz., as to when for the purposes
of the sealed cover procedure the disciplinary/criminal
proceedings can be said to have commenced, the Full Bench
of the Tribunal has held that it is only when a charge-memo
in a disciplinary proceedings or a charge-sheet in a criminal
prosecution is issued to the employee that it can be said that
the departmental proceedings/criminal prosecution is
initiated against the employee. The sealed cover procedure
is to be resorted to only after the charge-memo/charge-sheet

1
(1991) 4 SCC 109

12
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. The authorities thus are not without a remedy.”
(emphasis supplied)

23. At this stage, it is pertinent to note that the Ministry of

Personnel, Government of India vide OM dated 2nd November, 2012

issued certain clarifications regarding the stage when a

prosecution for criminal charge can be said to be pending, keeping

in view the dicta laid down in K.V. Jankiraman(supra). Para Nos.

6 and 8 of OM dated 2nd November, 2012 states as under:

“6. When a government servant comes under a cloud, he may pass
through three stages, namely, investigation for a criminal charge
in departmental proceedings and or prosecution of criminal
charges followed by either penal/conviction or
exoneration/acquittal. During the stage of investigation prior to
issue of charge-sheet in disciplinary proceedings or prosecution,
if the Government is of the view that the charges are serious and
the officer should not be promoted, it is open to the Government
to suspend the officer which will lead to DPC recommendation to

13
be kept in sealed cover. The sealed cover procedure is to be
resorted to only after the charge memo/charge-sheet is
issued or the officer is placed under suspension. The
pendency of preliminary investigation prior to that stage is
not adopt the sealed cover procedure.”
(emphasis supplied)

24. 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.

25. In view of the aforesaid legal position, the crucial aspect

requiring examination is as to whether the prosecution for criminal

charge was pending against the respondent when the DPC meeting

was held.

26. It is not in dispute that the sanction to prosecute the

respondent was granted on 2nd June, 2006 and the charge sheet

was filed by CBI, after completion of investigation on 25th October,

2008, whereas the DPC to consider the promotion of Additional

Commissioners of Income Tax was convened on 22nd February,

14
2007, wherein the sealed cover procedure was adopted qua the

respondent. It is thus clear that the charge sheet against the

respondent was filed well after the meeting of the DPC was

convened. Hence, it could not be said that the prosecution for a

criminal charge was pending against the respondent when the DPC

was convened. Therefore, the move on the part of DPC to resort to

the sealed cover procedure was unjustified and unsustainable on

facts and in law.

27. Resultantly, we have no hesitation in holding that the

impugned judgment of the High Court dated 26th April, 2013 is

based on apropos consideration of facts and law and hence the

same does not warrant interference.

28. The ‘Sealed Cover’ wherein the assessment of the respondent

was considered by the DPC was presented to the Court by learned

counsel for the appellant and was opened. The letter shows that

the DPC assessed the respondent to be ‘FIT’ for promotion.

Consequential steps in light of the above recommendations shall

follow.

29. This appeal lacks merit and is dismissed in the aforesaid

terms. No order as to costs.

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30. Pending application(s), if any, shall stand disposed of.

………………….……….J.
(SANDEEP MEHTA)

………………………….J.
(R. MAHADEVAN)
New Delhi;

September 24, 2024.

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