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:
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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
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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
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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.
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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:
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“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.
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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
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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-sheet1
(1991) 4 SCC 10912
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 to13
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,
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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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