1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.588/1995. : : S.N.Byadwal Vs. State of Rajasthan. : : Date of Order 26.2.2009 HON'BLE MR.JUSTI CE MOHAMMAD RAFI Q Mr. Ajeet Kumar Sharma for the petitioner. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. Reportable 1. This writ petition has been filed by the petitioner with the prayer that respondents be directed to open the sealed cover containing recommendations of Departmental Promotion Committee qua him for promotion to the scale of Rajasthan Administrative Service against vacancies of 1987- 88 and grant him promotion to selection scale w.e.f. 21.4.1988 when his juniors were so promoted and further that he should be held entitled to all consequential benefits with interest @ 18% per annum. 2. Shri Ajeet Kumar Sharma, learned counsel for the petitioner argued that a first information report was lodged 2 against the petitioner on 2.2.1984 for offences under Sections 420, 120-B IPC and Section 5 (1) (d) read with Section 5 (2) of Prevention of Corruption Act. Even if the matter was pending enquiry against petitioner in Anti Corruption Bureau, his case for promotion to selection scale became ripe against the vacancies of 1987-88 yet was liable to be considered by Departmental Promotion Committee along with cases of other similarly situated persons. DPC however illegally invoked sealed cover procedure in his matter and recommended promotions of others, which included many of his juniors. Learned counsel submitted that sealed cover procedure in the case of petitioner could not be invoked because according to circular issued by Department of Personnel of Government of Rajasthan dated 4.1.1977, DPC which was convened on 16.9.1987, was not required to invoke sealed cover procedure because at that time petitioner was neither under suspension nor even any disciplinary proceedings were proposed to be initiated against him. Learned counsel cited subsequent circular of Department of Personnel dated 17.7.1989 and submitted that even according to this circular, sealed cover procedure could be invoked only if a charge-sheet has been issued to government servant concerned or disciplinary proceeding was 3 pending against him or a criminal case was pending against him on a charge-sheet filed in Court. It was argued that criminal case against petitioner at that point of time was only at the stage of investigation and action of DPC in invoking sealed cover procedure was thus bad in law. Learned counsel in support of this argument cited judgment of Supreme Court in Union of India Vs. K.V.Jankiraman : AIR 1991 Supreme 2010 and judgment of this Court in Mohan Singh Vs. State of Rajasthan & Ors. : 2006 (5) WLC (Raj.), 405. Learned counsel also submitted that challan in the above referred to case was filed against petitioner in the Court of competent jurisdiction on 29.8.1991 and it was thereafter the petitioner was suspended on 25.9.1991. The Court framed charges against the petitioner vide order dated 4.9.1992. Petitioner and other accused filed a petition against order framing charges under Section 482 Cr.P.C. before this Court. This Court vide its judgment dated 14.10.1993 passed in SB Criminal Misc.Petition No.1272/92 : Dr. Zahoor Mohammed & Ors. Vs. State of Rajasthan not only quashed the order framing charge, but also entire proceedings against all petitioners, which included petitioner herein as well. Learned counsel submitted that since there was neither any enquiry however contemplated against petitioner nor was any 4 decision taken to hold such enquiry because when criminal case against petitioner was quashed, respondents vide order dated 14.10.1994 reinstated the petitioner in service and revoked the order of his suspension and also paid to petitioner remaining salary and allowances for the period of suspension. Learned counsel submitted that even as per Circular of Government dated 4.1.1977, which was in force at the time meeting of DPC was convened on 16.9.1987, sealed cover procedure was not required to be invoked against petitioner because there was no proposal to initiate disciplinary proceedings against him and no such material has been placed on record by respondents. 3. Shri Zakhir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that even though departmental enquiry was not pending against petitioner on the date when DPC was convened, but such departmental enquiry was contemplated against petitioner and, therefore, Departmental Promotion Committee was rightly invoked sealed cover procedure. It was contended that even otherwise, charge-sheet in departmental enquiry was actually served upon petitioner on 23.6.1992. Learned counsel submitted that recommendations of DPC, 5 which were already placed in sealed cover much before quashment of proceedings in criminal case by this Court vide its judgment dated 14.10.1993, were thus required to be retained in sealed cover notwithstanding judgment of this Court quashing proceeding in criminal case. Learned counsel submitted that subsequently disciplinary proceedings were also concluded against petitioner and he was awarded compulsory retirement by way of penalty vide order dated 5.9.1997. There can be now no question of opening the sealed cover and giving effect to recommendations of DPC qua the petitioner. Learned counsel submitted that as per circular of Department of Personnel dated 4.1.1977, which would apply in the present case because DPC was convened on 16.9.1987, the sealed cover procedure could be adopted in the case of employee against whom disciplinary proceedings were proposed to be initiated or otherwise, the competent authority had taken a decision, but where a charge-sheet or statements of allegations under Rule 17 has not been issued. Allegations on the basis of which charge- sheet was eventually issued to petitioner on 23.6.1992 were duly enquired into by Lokayukat of the State, who recommended a regular disciplinary enquiry against petitioner. District Collector, Jaipur by letter dated 6.5.1992 6 sent the draft charge-sheet along with record to Department of Personnel. It was on that basis that memo of charge-sheet was issued on 23.6.1996. 4. I have given my anxious considerations to the arguments aforesaid and perused the material on record. 5. It is a common ground between the parties that at the relevant time when DPC was convened on 16.9.1987, Circular of Department of Personnel dated 4.1.1977, which was later superseded by another circular on the same subject dated 17.7.1989, was in vogue. Para 2 of the circular dated 4.1.1977 provided as under :- “2.0 Cases of Government servants to whom Sealed Cover Procedure will be applicable : At the time of consideration of the cases of Government servants for promotion details of Government servants coming in the zone of consideration for promotion failing under the following categories should be specifically brought to the notice of DPC :- (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; 7 (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 for prosecution; (iv) Government servants against whom an investigation on serious allegation of corruption. A somewhat identical Office Memorandum of Government of India, Department of Personnel dated 30.1.1982 on the subject of promotion of officers in whose cases sealed cover procedure was invoked, came up for consideration before the Supreme Court in K.V.Jankiraman (supra) which provided that officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a Court of law or sanction for prosecution has been issued, sealed cover procedure could be invoked. The Full Bench of the Central Administrative Tribunal 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 is initiated against 8 the employee. It was thus held that 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 sealed cover procedure. The Supreme Court upheld the view expressed by Tribunal and rejected the contention advanced on behalf of Union of India 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. The Supreme Court held that acceptance of this contention would result in injustice to the employees in many cases. It was held that if the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalize the charges. The Supreme Court however held that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge sheet has already been issued to the employee. 9 6. I had the occasion to deal with a similar controversy in Mohan Singh (supra) in which case too, the employee concerned was considered for promotion against the vacancies of 1991 and investigation on charges of possessing assets disproportionate to known sources of his income was pending with Anti Corruption Bureau. The Bureau finally submitted final report in the matter on 19.12.1987, which was accepted by the Court on 6.3.1992. Sealed cover procedure was adopted in that case at a time when the matter was pending acceptance of final report and even though the final report was accepted, it was not yet opened to give effect to recommendations of DPC qua the petitioner. He filed writ petition, which was allowed by judgment dated 22.5.2000 directing the respondents to consider his case for promotion, but subsequently he stood retired from service on 31.7.2000. Sealed cover was finally opened and he was granted promotion on seniority cum merit basis vide order dated 90.9.2003, but petitioner felt aggrieved by non- consideration of his case to still higher post and submitted representations and the Joint Director Agriculture, Jaipur directed Assistant Director Agriculture to allow him actual benefits w.e.f. 31.3.2000. In those fact, relying on the judgment of Supreme Court in K.V. Jankiraman (surpa) in 10 para 9 of judgment of Mohan Singh (surpa), it was held as under :- “Adverting to the entitlement of the petitioner to claim further promotion on the post of Assistant Director Agriculture (Extension), it need to be noted that petitioner was granted promotion on the post of Agriculture Officer w.e.f. 31.3.1991, the date on which his juniors were so promoted. The petitioner has asserted that many of his juniors were promoted to the post of Assistant Director Agriculture (Extension) and this fact has not been denied by the respondents. There is no reason for non-consideration of the case of the petitioner for promotion to the post of Assistant Director Agriculture (Extension) from Agriculture Officer, on which post he has been promoted on 31.3.1991. Moreover, delay in non-consideration of his case for promotion to higher post is solely attributable to the respondents because they did not then open the sealed cover and did not timely grant him promotion on the post of Agriculture Officer. They delayed the matter so much that the petitioner finally retired from service having attained the age of superannuation. The penalty of stoppage of 25% of pension for five years imposed by the disciplinary authority on the petitioner vide order dated 20.5.2002 was based on the charge-sheet served upon him on 11 5.6.1997. If the petitioner's case for promotion to the post of Assistant Director Agriculture (Extension) was considered earlier than service of charge-sheet dated 5.6.1997, this charge-sheet would not have come in his way for right to consideration as sealed cover procedure an be resorted only from the date of issuance of charge-sheet and not before.” Although arguments of learned Additional Government Counsel that complaint on the basis of which charge-sheet has eventually been served upon petitioner in departmental proceedings on 23.6.1992 at the relevant point of time was pending enquiry with Lokayukut, who proposed disciplinary action against petitioner and District Collector, in the year 1992 proposed disciplinary action against petitioner and forwarded draft charge-sheet along with records to Department of Personnel on 6.5.1992, which on that basis issued charge-sheet to petitioner on 23.6.1992, but that contention is notice only to be rejected because admittedly DPC in the present case was convened on 16.9.1987. In order to justify invocation of sealed cover procedure, respondents have to bring their case within four corners of aforequoted Clause-III of DOP circular dated 4.1.1977. The 12 respondents have although in reply to writ petition made a general statement at different places that disciplinary enquiry against the petitioner was contemplated, but nothing in particular has been brought on record or otherwise indicated with reference to any particular date that either any preliminary enquiry was pending or otherwise any decision had been taken by competent authority to initiate disciplinary proceedings against the petitioner at any time before DPC was actually convened on 16.9.1987. Similar to the above referred to case of Mohan Songh (supra), the respondents are now seeking to justify invocation of sealed cover procedure on 16.9.1987 though charge-sheet was much subsequently served upon the petitioner on 23.6.1992, which eventually culminated into penalty of his compulsory retirement by order dated 5.9.1997. A subsequent charge- sheet or penalty cannot be validate invocation of sealed cover procedure on 16.9.1987, when DPC was convened. Respondents were not legally justified to invoke sealed cover procedure on that date. Subsequent issuance of charge-sheet or order of penalty obviously would not justify invocation of sealed cover procedure and if sealed cover procedure was not invoked, the consequence would have been that respondents were bound to give effect to recommendations 13 of DPC qua the petitioner. If the petitioner had been recommended for promotion to selection scale by DPC with his fellow officers, whether senior or junior, he would have in all probabilities been promoted in the order dated 21.4.1988 itself. In the light of discussion above, the present writ petition deserves to be allowed and is accordingly allowed. Action of the respondents in invoking sealed cover procedure in the case of petitioner while convening Departmental Promotion Committee to recommend cases of promotion to selection scale against the quota of 1987-88 is held to be illegal. Respondents are directed to open the sealed cover and give effect to recommendations of DPC qua the petitioner and pass necessary order with all consequential benefits together with interest @ 6% per annum. Compliance of this judgment be made within three months from the date its copy is produced before the respondents. Costs made easy. (MOHAMMAD RAFI Q)J. A.Arora/ - Item No.H/ 7. 14 S.B. CIVIL WRIT PETITION No.5654/1997. : : Date of Order 26.2.2009 HON'BLE MR.JUSTI CE MOHAMMAD RAFI Q Mr. Prahlad Singh for the petitioner. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. This writ petition has been filed challenging the order of compulsory retirement, therefore, this writ petition be detached from SB Civil Writ Petition No.588/1997 and be listed separately. (MOHAMMAD RAFI Q)J. A.Arora/ -