IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.104 of 2007 along with CWP-T Nos.2119 & 2120 of 2008. Judgment reserved on: 12.11.2008. Date of decision: 21st November, 2008. CWP No.104 of 2007: Tulsi Ram ....Petitioner -Versus- State of H.P. and others ….Respondents CWP-T No.2119-2008: Tulsi Ram ….Petitioner Versus Principal Secretary (Agriculture) and others ….Respondents CWP-T No.2120 of 2008: Hans Raj Sharma ….Petitioner Versus State of H.P. ….Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the Petitioners: Mr.H.K. Paul, Advocate for petitioners in CWP No.104 of 2007 & CWP-T No.2119 of 2008. Mr.Dalip Sharma, Advocate for petitioner in CWP-T No.2120 of 2008. For Respondents: Mr. R.M. Bisht, Dy.A.G. for respondents- State. Mr.Dalip Sharma, Advocate for R-3 in CWP No.104 of 2007 & CWP-T No.2119 of 2008. Deepak Gupta, J. These three writ petitions are being disposed of by a common judgment since they all arise out of the same order and involve identical questions of fact and law. 2 Sh.Tulsi Ram, petitioner in CWP-T No.2119 of 2008 is admittedly much senior to Sh.Hans Raj Sharma, respondent No.3 in the said petition. Sh.Tulsi Ram was working as Senior Analytical Chemist whereas Hans Raj Sharma was Deputy Director of Agriculture. One post of Joint Director fell vacant on 30th September, 2006 due to the retirement of the incumbent. A DPC was constituted to select the employee found suitable for the said post. Admittedly the post of Joint Director is to be filled in by selection from amongst the eligible candidates on the basis of merit. A meeting of the DPC was held and respondent No.3 was recommended for promotion to the post of Joint Director. The petitioner sent a representation to his Department that the respondent No.2 Sh.J.C. Rana, Director of Agriculture is biased against the petitioner on account of the fact that the petitioner belongs to the scheduled caste category. He alleged that Hans Raj Sharma is much junior to him and that he apprehends that he will not get justice from Sh.J.C. Rana. The petitioner also alleged that the vigilance proceedings against Sh.Hans Raj Sharma were under consideration at the said stage and therefore Sh.Hans Raj Sharma could not have been given integrity certificate and should not be promoted to the post of Joint Director. The petitioner also filed O.A. No.3138 of 2006 before the H.P. State Administrative Tribunal praying that the post of Joint Director (Agriculture) be not filled up till the representation filed by the petitioner is decided. He also prayed that the work of respondent No.3 be assessed without relying upon the 3 reports of respondent No.2. He also prayed for reconvening the meeting of DPC without associating respondent No.2. The respondent No.3 filed O.A. No.3479 of 2006 praying therein that the State Government be directed to implement the recommendation of the DPC and that the respondent No.3 be promoted as Joint Director (Agriculture). One Sh.Atma Sarup who was eligible to be promoted as Deputy Director also filed O.A. No.3499 of 2006. His grievance was that since the post of Joint Director has not been filled in he is suffering. He therefore prayed that the post of Joint Director be filled in and consequent to the one post of Deputy Director falling vacant he may be considered for the said post. In all these cases applications for interim reliefs were also filed. Whereas the petitioner prayed that in the interim the post of Joint Director be not filled in, in the other two applications interim relief sought was that the report of the DPC be implemented. All the above three cases were taken up together and heard on 15.12.2006. The learned Tribunal directed that the recommendations of the DPC which was convened on 25.8.2006 for filling up the post of Joint Director be implemented within a period of one month. All the three applications for interim relief were consequently disposed of. Tulsi Ram filed CWP No.104 of 2007 in this Hon’ble Court challenging the interim order of the learned Tribunal. Thereafter, the H.P. State Administrative Tribunal has been abolished. 4 Consequently, the O.As filed by Tulsi Ram and Hans Raj Sharma have been transferred to this Court and have been re-numbered as CWP-T No.2119 of 2008 and CWP-T No.2120 of 2008. We have heard all the three cases together. The main thrust of the petitioner before the learned Tribunal as well as before this Court was that Sh.J.C. Rana, respondent No.2 is inimical to him and for this reason he has down graded the petitioner in his ACRs and has upgraded the respondent No.3 with a view to give him undue benefit. However, this assertion of the petitioner is not supported by the material on record. In fact we have found that Sh.J.C. Rana had graded the petitioner Sh.Tulsi Ram as ‘good’ and his grading was down-graded to ‘average’ by the Secretary (Agriculture). This clearly shows that Sh.J.C. Rana was not inimically disposed towards the petitioner. The second contention of the petitioner is that a vigilance inquiry was pending against respondent No.3. It is not disputed that serious allegations have been levelled against respondent No.3. A Senior Officer to the Government of Himachal Pradesh had been directed to hold an inquiry into the matter and his preliminary report was against respondent No.3. The said official had recommended that this was a fit case to be handed over to the Vigilance/Enforcement Department. However, the fact is that till date no disciplinary or criminal proceedings have been initiated against respondent No.3. In fact the learned Deputy Advocate 5 General has pointed out to us that the Vigilance Department has recommended the dropping of all the proceedings against respondent No.3. The Apex Court in Union of India and others vs. K.V. Jankiraman and others, (1991) 4 SCC 109, has clearly held that it is only when a charge memo in the case of disciplinary proceedings and charge-sheet in criminal proceedings is issued to the employee that it can be said that the departmental proceedings or criminal prosecution have been initiated against the employee. The sealed cover procedure is to be resorted only in such cases. The Apex Court also clearly held that merely because preliminary investigation was pending is no ground to follow the sealed cover procedure. It would be relevant to refer to the relevant observations made in para 16 by the Apex Court: “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 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……” Sh.H.K. Paul appearing for the petitioner has drawn our attention to the observations of the Supreme Court in Paras 36 to 39 of the said judgment. In our opinion these observations are of no help to the petitioner. In those cases admittedly the criminal 6 prosecutions had been launched against the employees but the same were withdrawn with a right reserved to the Department to initiate departmental proceedings. It is in this context that the Apex Court held that merely because the disciplinary proceedings were not pending on the date of the DPC would not make the employees eligible for promotion. This view has been reiterated in Coal India Ltd. And others vs. Saroj Kumar Mishra, (2007) 9 SCC 625. Reliance placed by Sh.Paul on the judgment of the Apex Court in State of U.P. vs. Yamuna Shanker Misra and another, (1997) 4 SCC 7, is totally misplaced. The stray observations relied upon by the petitioner cannot be pulled out of the context. In that case the authority recording the ACR had made adverse remarks regarding the integrity of the employee during pendency of vigilance proceedings. It was held that the Secretary was entitled to record these remarks and unless the Officer was exonerated the Secretary could not clear the conduct and integrity of the Officer. In the present case the vigilance authorities sent a letter to the Department that though the vigilance proceedings are going on they should not be taken to be a bar to the promotion of the respondent No.3. There were no adverse entries against the petitioner. Sh.H.K. Paul lastly contended that the remarks in the ACR grading the petitioner as ‘average’ were adverse to him and should 7 have been communicated to him. Reliance has been placed by him on the judgment of the Apex Court in Dev Dutt vs. Union of India and others, (2008)8 SCC 725. The petitioner cannot be permitted to raise this ground since this is not a ground taken either in the O.A. or in CWP No.104 of 2007. There is no basis for these grounds to be taken. In view of the above discussion we are of the considered view that the petitioner has miserably failed to prove that the respondent No.2 was inimically disposed towards him. We are also of the view that the DPC acted strictly in accordance with law. We have gone through the record and compared the ACRs of the two officials and it is apparent that respondent No.3 has a much higher grading than the petitioner. As such, there is no merit in the case of the petitioner and therefore CWP-T No.2119 of 2008 filed by him is dismissed. As far as CWP No.104 of 2007 is concerned, we are constrained to observe that the learned Tribunal should not have passed an interim order which virtually decided two of the O.As pending before it. However, since we have heard the main case and find no merit in the same it would be an exercise in futility to embark upon a further discussion of the case. CWP No.104 of 2007 is accordingly rejected. As far as CWP-T No.2120 of 2008 is concerned, the petitioner Sh.Hans Raj Sharma in this case stands already promoted and we have upheld the recommendations of the DPC in CWP-T No.2119 of 8 2008. This petition has virtually become infructuous and is disposed of accordingly. All the aforesaid petitions are disposed of in the aforesaid terms. There shall be no order as to costs. ( Deepak Gupta ), Judge November 21, 2008. ( V.K. Ahuja ), PV Judge