By TIOL News Service

NEW DELHI, JULY 10, 2018: THE ISSUE is - Whether the name of a Government servant can be kept out of the list of officers eligible for promotion merely because some disciplinary proceedings were being proposed against him. NO is the answer.

Facts of the case:

In the year 1994, respondent had joined the services as an Assistant Commissioner (Probationer) w.e.f. 04.09.1994 and was selected as an IRS Officer. Subsequently, he was promoted to the post of Deputy CIT. Thereafter, the respondent was promoted as JCIT in the year 2005 and as Additional CIT on 01.01.2007. On 05.06.2015, a Departmental Promotion Committee (DPC) was held for preparing a panel for making promotions to the post of CIT whereby, the name of the respondent No.1 was included. Accordingly, the DPC submitted its recommendations to the ACC by including the name of the respondent. On 26.06.2015, the Central Vigilance Commission (CVC) gave advice to the Ministry of Home Affairs for initiating major penalty proceedings against the respondent and accordingly, a letter was received on 20.07.2015. Thereafter, the petitioner No. 1 (Ministry of Finance) and petitioner No. 2 (CBDT) wrote a letter to the Ministry of Home Affairs asking for certified copies of various documents including the factual report on the Articles of Charge so that appropriate disciplinary action could be initiated against the respondent.

When the recommendations of the DPC were placed before the ACC for making promotions of the post of CIT, the ACC desired that the status of pending complaints against the respondent be verified. Further, on receiving such information, directed that the decision on the pending complaints be expedited by the petitioner No.1. Therefore, on 16.09.2015, the CBDT had passed an order promoting eligible officers to the post of CIT however, the name of the respondent was not mentioned. Aggrieved by such exclusion, the respondent approached the Central Administrative Tribunal (CAT) but, it was opposed by the petitioners. The Tribunal directed the petitioners to promote the respondent from the date when his immediate juniors were promoted. The Tribunal had also expressed that there was no ground on which the promotion could have been kept in abeyance. The petitioner had admitted that the respondent was eligible for promotion, and some complaints on which CVC advice was obtained by MHA, came to their notice only after a query from the ACC. Thus, the Tribunal concluded that the intention to initiate major penalty proceeding against an officer was not sufficient ground to deny him promotion. Nevertheless, a charge-sheet was issued against the respondent and thus, his case felt under clause 7 of the O.M. dated 14.09.1992 issued by the DoPT. Therefore, the recommendations made by the DPC had to be placed in a sealed cover, in circumstances explained at length in the captioned O.M.

In Writ, the High Court held that,

++ the O.M. dated 14.09.1992, was issued by the DoPT on the subject of "Promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation". The said O.M. refered to an earlier O.M. dated 12.01.1988 issued by the DoPT. In contra-distinction to the O.M. dated 12.01.1988, wherein the sealed cover procedure was directed to be adopted in four circumstances, in the subsequent O.M. dated 14.09.1992, the DoPT had recommended that the said procedure ought to be adopted only in three circumstances. . In other words, the fourth category which was mentioned in the O.M. dated 12.01.1998, that referred to a situation where the DPC was required to be informed if a government servant against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise, was in the zone of consideration for promotion, was deleted by the subsequent O.M. dated 14.09.1992. In terms of the OM dated 14.09.1992, the parameters within which the DPC is required to adopt the sealed cover procedure in the case of a Government servant who falls within the zone of consideration for promotion has been limited to the three categories namely, (i) A Government servant who is under suspension ; (ii) A Government servant in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending and (iii) A Government servant in respect of whom prosecution for criminal charges is pending ;

++ in the instant case, when the name of the respondent had fallen within the zone of consideration for the DPC to examine on 05.06.2015, none of the said three situations/circumstances had arisen. The respondent was neither under suspension, nor had a charge-sheet been issued against him; nor were any disciplinary proceedings pending against him, much less a criminal charge for prosecution. As a result, after due consideration, the DPC had empanelled the respondent for promotion to the post of CIT and forwarded his name along with the others to the Competent Authority, namely, the ACC. It was only thereafter that the petitioners claim to have received some information from the Ministry of Home Affairs with regard to the first stage advice given by the CVC for initiating major penalty proceedings against the respondent. We are informed that the reason behind initiating major penalty proceedings against the respondent was that he had given an NOC to a Trust that was in control of an enemy property situated in Mumbai for disposal through an open bid. The Counsel for the respondent states on instructions that the said NOC had been issued by the respondent after receiving legal advice from the Ministry of Law and that he had not granted the said permission on his own accord;

++ it was only at that stage that the ACC had desired to know the status of any complaint pending against the respondent. By that time, the Ministry of Home Affairs had intimated the petitioners that it had received the first stage advice by the CVC on 26.06.2015, for initiating major penalty proceedings against the respondent. It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent. The position remained the same when the O.A. filed by the respondent was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a charge sheet was finally issued against respondent, proposing to initiate disciplinary proceedings against him. By then, the judgment came to be passed by the Tribunal directing the petitioners to promote the respondent from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted. Given the fact that the respondent did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 as passed by him. As has been held in K.V.Jankiraman's case, the relevant date for determining the eligibility of the respondent ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15;

++ thus, in view of the totality of the facts and circumstances of the present case and the legal position, we do not find any illegality, arbitrariness or infirmity in the judgment dated 12.05.2016, that warrants interference in judicial review. Accordingly, the present petition is dismissed as being devoid of merits. The petitioners are directed to implement the judgment within six weeks from the date of the judgement.

(See 2018-TIOL-1283-HC-DEL-SERVICE)