CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 1 of 26 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved On : 11.09.2009 % Date of decision : 07.10.2009 + CM 7961/2009 in WP (C) No.6856 of 2008 MAJOR GENERAL A.K. KAPUR, VSM …PETITIONER Through: Mr. Maninder Singh, Sr.Adv. with Mr. Viraj R. Datar & Mr.Vineet Jhanji, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.S.Chandihok, ASG with Mr. Sanjeev Sachdeva, Mr. Preet Pal Singh, Ms.S.Mercy Deborah & Ms.Geetika Panwar, Advocates. CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes SANJAY KISHAN KAUL, J. 1. The petitioner joined the Army on 14.11.1971 and earned his promotions up to the rank of a Major General. The petitioner was considered for promotion to the rank of Lieutenant General in the Army CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 2 of 26 Ordnance Corps (AOC) as per a Special Selection Board held on 05.11.2007. 2. The result of this SSB was however withheld for over almost ten months and the petitioner aggrieved by the same filed WP(C) 6856/2008 praying for the de- classification of the results of the SSB with respect to the petitioner and to grant him promotion to the rank of Lieutenant General with all consequential benefits. 3. On consideration of the writ petition and calling for records, it was found that just prior to the SSB , an FIR was registered by the CBI on 08.10.2007 on the basis of sourced information alleging that the petitioner had amassed assets disproportionate to his known sources of income and a raid was also carried out at the premises of the petitioner. The petitioner claimed that nothing incriminating was found and all the properties were either inherited or acquired from sale of properties which had been inherited. The petitioner claimed to be belonging to a landed class having assets and had explained all the queries. 4. The case of the petitioner was directed to be treated as one of a deemed DV Ban and thus was not approved by the Appointments Committee of the Cabinet („ACC‟ for short). The question which thus arose was whether such a deemed DV Ban would apply to the case of the petitioner. The policy CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 3 of 26 decision for imposition of a DV Ban is dated 04.07.2000 and the relevant provision in Clause 5(a) of the policy reads as under: “5. For imposition of Provisional DV Ban each case is examined by the AG‟s Branch (DV Dte.) on its merits. Provisional DV Ban is imposed in the under mentioned specific cases:- a) SPE/CBI Cases (Type „C‟). When the competent authority accords approval for prosecution of the affected personnel (officers only) by the CBI in civil court, the officer is put under Provisional DV Ban type „C‟. When the CBI recommends departmental action, the officer will be put under Provisional DV Ban type „D‟/‟A‟/‟T‟, as the case may be, after the competent authority has taken cognizance of the offence and directs appropriate action against the officer.” 5. The aforesaid policy was thus examined in the writ petition and it was concluded that the pre-requisite for a DV Ban is where a competent officer accords approval for prosecution of the affected personnel by the CBI. The stage of CBI making any recommendation had not even arisen even though a period of sixteen months had elapsed since the registration of the FIR. It was thus found that the ex facie it was not a case of DV Ban. We also took note of the fact that the SSB had been held after the FIR was registered and yet the SSB in its own wisdom had recommended the case of the petitioner alone for promotion finding nothing adverse in his career CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 4 of 26 profile and finding the other two persons unfit. We found that there could not be any deemed ban as every authority is governed by the law of the land and the norms laid down by itself, so that there is no unfettered discretion in any authority. Thus, once the respondents in their wisdom had framed a policy as to when a DV Ban comes into operation, and that condition not being satisfied, there could not be a bar of DV Ban to the promotion of the petitioner. However, instead of granting the relief of promotion, we considered it appropriate that it was a fit case where the ACC may re-examine the complete matter in terms of what we had observed and take a fresh decision within one month. 6. No decision came to be taken for over three months and ultimately the petitioner filed a contempt petition which was listed on 12.05.2009 and notice was issued returnable on 06.07.2009 giving liberty to the respondents to take a decision in the meantime. The petitioner received a communication dated 10.06.2009 informing him that the petitioner had not been selected for promotion by the SSB held on 05.11.2007 and this stand was also reiterated in the CCP stating that the ACC had examined the matter afresh and approved that the Grading „B‟ (fit) awarded by the SSB on 05.11.2007 in respect of the CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 5 of 26 petitioner be changed to Grading „Z‟ (unfit). This contempt petition was withdrawn on 06.07.2009 and in the meantime, the present application had been filed by the petitioner. 7. It may be noticed that the petitioner was also served with a convening order dated 06.06.2009 for convening a court of enquiry for violation of instructions contained in SAO 3/S/98 to the extent that the petitioner failed to give intimation to the Army in respect of certain HUF properties which formed part of the properties in respect of which the investigation was being carried out by the CBI. In this behalf, information had been sought from the petitioner on 31.03.2009 vide a letter of the even date (wrongly mentioned as 31.03.2008) which was replied to by the petitioner on 07.04.2009. The stand of the petitioner was that the properties mentioned in the letter had been acquired by the HUF of which he was the karta. The HUF had been formed from 1987 onwards with a separate PAN number and that as per SAO 3/S/98 there was no requirement of filing the details of HUF property. These properties were in any case known to the headquarters since October, 2007 when the FIR was registered and in pursuance to a communication of the Western Command dated 30.04.2008, the petitioner had even communicated CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 6 of 26 his HUF assets vide letter dated 30.05.2008. One of the properties stated to have been acquired by the adult son of the petitioner was stated to have been gifted to him by his grandparents at the time of his attaining majority and the son was an independent tax payer filing separate returns for three years prior to the said letter. 8. The present application has been filed seeking a clarification/modification of the Order dated 19.02.2009 by which the writ petition was disposed of to the extent that the ACC should re-examine the matter relating to the promotion of the petitioner without in any manner being influenced by the registration of the FIR by the CBI and directly in accordance with the policy decision dated 04.07.2000 and to quash the decision taken by the ACC purportedly under directions of this Court. A further relief was sought clarifying that the order dated 09.06.2009 passed by the ACC holding the petitioner as „unfit‟ giving him Grading „Z‟ is contrary to the settled legal position. 9. The respondents have filed a reply. We had called for the relevant records including the notes sent to the ACC and have examined the same. 10. The objection of the respondents at the threshold is that once the fresh order had been passed by the CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 7 of 26 ACC, the same is really a fresh cause of action and if the petitioner has any grievance, he must challenge the order by filing a separate petition. On the other hand, learned senior counsel for the petitioner has contended that if the order dated 19.02.2009 has not been implemented in its letter and spirit keeping in mind the observations of the Court then the petitioner cannot be made to file petitions again and again over what was the original cause of action. 11. We may note that intent and purport of our order dated 19.02.2009, to our mind, was quite clear. The case of the petitioner had been recommended by the SSB though the final competent authority is the ACC. The reason for non grant of promotion to the petitioner was the pendency of the FIR in respect of which no charge sheet had been filed for sixteen months and even thereafter till the present proceedings through the present application began. The only reason was the concept of deemed DV Ban introduced and we were categorical in our opinion that there can be no such deemed DV Ban when the policy decision dated 04.07.2000 provided for a provisional DV Ban only when the CBI recommends the case for departmental action. Thus the pre- requisite was such a recommendation of the CBI did not exist. Thus, it is keeping in mind the policy CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 8 of 26 decision and our interpretation of the policy decision that the matter had to be re-considered by the ACC. If such a reconsideration has actually taken place and still the ACC has deemed it appropriate not to promote the petitioner and once again it is the same cause as was prior to our judgment dated 19.02.2009 then we can certainly issue directions in the present application. We are thus examining whether the re- examination of the case of the petitioner is in terms of our directions dated 19.02.2009. Our order dated 19.02.2009 was not challenged any further and was accepted by the respondents. 12. A perusal of the record shows that it is once again the FIR registered against the petitioner on 08.10.2007 which has formed the basis of the decision of the ACC. The notes recorded prior to the matter being forwarded to the ACC and the note sending the matter to the ACC leaves no manner of doubt in this behalf. 13. The respondents being conscious of the fact that there can no deemed DV Ban and that the policy decision relating to the provisional DV Ban could not come to their aid recommending that the grading of the petitioner be changed to Grade „Z‟ (unfit) instead of Grade „B‟ (fit). The performance of an officer is judged by the SSB. The performance of the petitioner CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 9 of 26 was found to be good enough to recommend him for promotion while others were not found fit for promotion. The ACC having the last word is dependent on other factors which may be taken into account. These other factors is once again the same FIR which cannot come in the way of promotion of the petitioner as there was no recommendation of the CBI on the date the decision as taken once again by the ACC on 09.06.2009. The note for consideration of the ACC records all the facts and once again states that since a clean chit had not been given to the petitioner and final outcome of the investigation is awaited, the petitioner should not be promoted. In fact, it notes that “only referring the matter to ACC will serve the purpose of the Department”. This thus shows that what was sought to be done was a mere formality by achieving the same objective by once again following an illegal route. The note also shows that the first aspect raised is of immovable properties possessed by the petitioner as also some moveable assets. The complete period of service of petitioner is being looked into which runs into 36 years. The properties held in the name of the HUF are stated to be in contravention of the SAO 3/S/98 and thus it is stated that the same warrants a disciplinary action. In respect of this Army Order, it would be useful to refer CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 10 of 26 to the averments made by the petitioner in the application in reference to the letter dated 31.03.2009 and his interpretation of SAO 3/S/98. The relevant paras are as under: “7. Furthermore, the petitioner has thereafter has also been served with a Convening Order dated 06.06.2009 wherein the Court of Inquiry has been convened for violation of instructions contained in SAO 3/S/98 by the petitioner to the extent that he has failed to give intimation to the Army in respect of the certain HUF properties which form part of the properties investigation in respect of which is apparently being carried out by the CBI. True copy of the Convening Order dated 06.06.2009 is annexed hereto and marked as Annexure C-4. 8. In this respect the Petitioner was called upon by a communication dated 31.03.2009 to give details of properties returns in respect of the said properties. The petitioner had duly replied to the aforesaid communication by his letter dated 07.04.2009 wherein the correct position as per the Army instructions as also the factual position regarding all the properties were setup, despite which, reasons which are obvious a Court of Inquiry has been convened against the petitioner. True copy of the communication dated 31.03.2009 and reply dated 07.04.20098 are annexed hereto and collectively marked as Annexure C-5 (Colly).” 14. In reply to the aforesaid averments, the respondents have set out as under: “ 7 & 8 contents of these paras are matter of records.” CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 11 of 26 15. Annexure C-5 referred to in the application of the petitioner is the letter dated 31.03.2008 (the date should have actually been 31.03.2009) whereby the petitioner was asked to give details of the property returns in respect of the properties mentioned therein. The reply is dated 07.04.2009 annexed to the application, which is also Annexure C-5. The relevant portion of which reads as under: “2. It is submitted that I have filed all the property returns required to be filed by me as per the SAO 3/S/98. The properties mentioned in the letter under reference (except Srl (a) (iv) ) have been acquired by a Hindu Undivided Family (HUF) of which I am only the karta. The HUF is named “Anand Kumar Kapur”. This HUF is an independent financial entity as per the laws of the State with its own assets, income, expenditure and accounting/taxation status. The HUF was legitimately formed in 1987 from the assets inherited from the HUF of my father, after approval of the Taxation authorities. A separate PAN no. was duly allotted to it. Since 1987, I have filed separate annual income and Wealth Tax Returns as karta of the HUF. The Tax Returns in which these properties have been reflected have been assessed, accepted and found in order, year to year, by the competent authority, viz., Govt. of India, Ministry of Finance (IT Division). 3.In this regard, I would like to draw your kindly attention to the following provisions of the said SAO. a) Para 2. “All ranks are required to report the acquisition or disposal of the property…., except those transactions which are conducted by the family members exclusively out of their own CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 12 of 26 earnings and possessions.” The HUF properties are except as the transactions are from its own possessions and earnings. b) Para 7 (c) Family members means a person “wholly dependent on him”. The HUF is not dependent on me in any way whatsoever. Therefore, its assets cannot be linked to me as an Individual. c) Para 14 (c) As regards property under Hindu Undivided Family, “transactions of immovable/movable property form individual ownership to “Hindu Undivided Family” or vice versa… are required to be reported.” I confirm that none of these transactions were conducted between me as an individual and the HUF and therefore were not required to be reported under the SAO. 4. The property at Srl 2 (a) (iv) was acquired by my adult son from gifts bequeathed to him by his grandparents at the time of his attaining majority. He is an independent tax payer and has reported the subject property in his Income Tax Returns for the last three years. 5. I submit that in terms of Para 2 and 14(c) of SAO 3/S/98, I was not required to intimate my HUF properties, as explained above, However, I would like to mention that information of the HUF assets is known to the IHQ of MOD (Army) since October, 2007 as these properties form part of the FIR dated 10 Oct 2007. Also, in response to HQ South Western Comd letter No.47232/7/AI (DV-2) dated 30 Apr 2008, I communicated my HUF assets vide my letter of even No. dated 30 May 2008, enclosing copies of the PAN card and IT & Wealth Tax returns of the HUF. I also explained the origin and nature of my inherited and HUF assets in para 5 of the letter. Thus, the fact of my holding these properties as part of a HUF has been known. No observations was raised CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 13 of 26 by any authority since October 2007/May 2008.” 16. The stand of the petitioner thus categorically is that in terms of SAO 3/S/98 the HUF properties are exempt as there are no transactions inter se the HUF and the petitioner. This position is not even disputed by the respondents. Further, the CBI has not given any conclusion at the time when the matter was sought to be decided by the ACC. 17. The noting shows that another aspect sought to be raised, possibly as a red herring, is that the Delhi Police had arrested the petitioner in the case registered under Section 61/1/14 of the Excise Act for being in possession of 44 bottles of liquor of foreign make at his residence and the case was likely to be concluded very soon. This aspect was in existence even at the stage of the earlier consideration as it is pursuance to the same search carried out on 08.10.2007 by the CBI. The bottles of liquor were actually recovered from the residence of the mother of the petitioner at Sainik Farms, New Delhi and the petitioner‟s mother had made a statement to the police that the bottles belonged to her and were being collected over the years for the celebration connected with her grandson. Despite this fact, the ACC was sought to be given an impression as if these CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 14 of 26 bottles were recovered from the residence of the petitioner though the petitioner was not residing at Sainik Farms. Not only that, the proceedings against the petitioner in respect of this case, on the charge sheet being filed only on 16.03.2009, were stayed by an order dated 14.07.2009 and it is State which has been taken time since then. 18. As to what should be the approach of the authorities in such matters is clarified by a judgment of the Supreme Court in Coal India Ltd. & Ors. v. Saroj Kumar Mishra; JT 2007 (6) SC 6. In the facts of the case, a person employed with a government company had a vigilance case pending against him, but had not been placed under suspension. His juniors were being promoted though he was not promoted and during the pendency of the writ petition, charge sheet was filed and the disciplinary proceedings were held and employee was awarded the punishment of reduction of pay. The High Court allowed the writ petition directing promotion of the officer with effect from the date when his juniors were promoted. The Supreme Court dismissed the SLP of the employer concluding that merely on the ground of pendency of a vigilance case against the employee, he could not be deprived of his promotion. The relevant office memorandum was interpreted to imply that an CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 15 of 26 employee should not be harassed or deprived from getting the benefit of DPC for an indefinitely prolonged period on the ground of pendency of such an inquiry especially when at the relevant date the competent authority had not arrived at any decision in terms of the circulars and that a charge sheet was likely to be issued. It was observed in para 22 of the judgment that a departmental proceeding is ordinarily said to be initiated only when a charge sheet is issued. 19. In the present case also the office memorandum is quite clear and the object is that mere pendency of a vigilance case would not come in the way of promotion of an officer. It is only when the recommendation is received from the CBI in terms of the office memorandum dated 04.07.2000 that the provisional DV Ban would come into operation. The object of this office memorandum is also to prevent harassment to an officer by mere pendency of a vigilance case. The CBI enquiry had produced no results till the relevant date and despite waiting for a period of ten months no recommendation having been made by the CBI, the petitioner approached the Court. The decision in the writ petition was rendered on 19.02.2009 till which time 16 months had elapsed and there was still no recommendation of the CBI. CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 16 of 26 The reconsideration of the case of the petitioner by the ACC was on 09.06.2009 and even by that time also there was no recommendation of the CBI. The petitioner is retiring on 30.11.2009 and thus the very opportunity of the petitioner to earn his ranks is sought to be defeated. We are conscious of the fact that an element of greater probity would be involved specially keeping in mind that the petitioner is working at a senior position in the Army. 20. We had emphasized in para 7 of our judgment dated 19.02.2009 that no amount of subsequent monetary compensation is a substitute for holding the rank. The privilege to wear the uniform and the rank is only of the armed services, paramilitary services or police and it is the aim of any officer to hold the highest rank and wear the same on his shoulder. 21. Another important aspect brought to our notice is that throughout this period the petitioner has kept the position of MGAOC (Major General Army Ordnance Corps), HQ, South Western Command, Jaipur and is involved with procurement and distribution of all ordnance items for the South West Command. This position is not even disputed by the respondents. The petitioner thus is occupying an important position as a Major General and the Army in its wisdom has deemed it appropriate to keep him in that position CM 7961/2009 in WP (C) No.6856 of 2008 Page No. 17 of 26 taking into consideration his past records. The Army has found no reason till that date to really take any action against the petitioner and even the convening order dated 06.06.2009 has not proceeded any further. 22. We