Promotion to be kept under sealed cover if disciplinary proceedings initiate after departmental recommendations: Delhi High Court

W.P.(C) 2852 2021 Mr. Amit Sinha Advs. Date of decision: 26th April 2021. IN THE HIGH COURT OF DELHI AT NEW DELHI DINESH SINGH ..... Petitioner Through: Mr. R.V. Sinha Mr. A.S. Singh and DR. AJAY BHUSHAN PANDEY & ORS. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. CM Nos.8594 2021 8595 2021 & 8596 2021 ..... Respondents Through: Mr. Ravi Prakash and Mohammad Allowed subject to just exceptions and as per extant rules. Shahan Ulla Advs. The applications are disposed of. W.P.(C) No.2852 2021 & CM No.8597 2021 Principal Bench New Delhi of closing the contempt case being C.P. W.P.(C) 2852 2021 No.422 2016 filed by the petitioner averring non compliance by the respondents of the order dated 12th May 2016 in OA No.3604 2015 filed by the petitioner. 4. We have heard the counsel for the petitioner. OA No.3604 2015 was filed by the petitioner an Officer of the Indian Revenue Serviceof 1994 Batch then working as Additional Commissioner of Income Tax seeking promotion to the grade of Commissioner of Income Tax with effect from 16th September 2015 being the date when his immediate junior was promoted. CAT in the order dated 12th May 2016 found observed heldthat the petitioner fulfilled all the eligibility conditions for promotion and the Annual Performance Appraisal Reports of the petitioner for relevant years also met the prescribed benchmark and that the petitioner was neither facing any criminal case disciplinary proceedings nor was under suspension that the petitioner had however not been promoted because the respondents had obtained the first stage advice of Central Vigilance Commission for initiation of major penalty proceedings against the petitioner and therefore the case of the petitioner for promotion had been put on hold that only when the government servant was under suspension or had been issued a charge sheet and disciplinary proceedings were pending against him or was under prosecution for a criminal charge was the finding of the Departmental Promotion Committee required to be kept in sealed cover to be opened after the culmination of the said proceedings and the promotion even if the recommendation of the DPC was for promotion had to be kept in abeyance till then that the petitioner at the time of holding of the DPC did not fall in either of the said categories and the Principal Director W.P.(C) 2852 2021 General of Income Tax had also not withheld the vigilance clearance of the petitioner as his case did not fall in either of the said three categories that only when the recommendations of the DPC were submitted to the Appointment Committee of the Cabinet for approval did the ACC desire to know the latest status of the complaint pending against the petitioner and in response whereto it was informed that the first stage advice for initiating major penalty proceeding against the petitioner had been sought and that in these circumstances there was no ground for withholding promotion of the petitioner. Accordingly the OA was allowed and the respondents directed to promote the petitioner from the date on which his immediate junior had been promoted. The contention of the counsel for the petitioner before us is that the aforesaid order of CAT attained finality with the dismissal on 28th May 2018 of W.P.(C) No.10543 2017 preferred by the respondents thereagainst and CAT in the impugned order dated 25th January 2021 has erred in closing the contempt case and not directing implementation of its order dated 12th May 2016 and in not punishing the respondents for contempt thereof. CAT in the impugned order has closed the contempt case reasoning i) that it is true that the petitioner did not face any disciplinary or criminal proceeding by the time the DPC met for promotion taking note thereof vide order dated 12th May 2016 OA No.3604 2015 preferred by the petitioner was allowed and direction issued for promotion of the petitioner that during the pendency of W.P.(C) No.10543 2017 no steps were taken for implementation of the order and in fact the contempt case closed however on dismissal of the writ petition the contempt case was revived W.P.(C) 2852 2021 however since then a charge memo dated 6th February 2017 had been issued to the petitioner and the OA No.2772 2017 preferred by the petitioner impugning the same was dismissed on 22nd August 2019 and W.P.(C) No.13259 2019 preferred by the petitioner thereagainst was pending that the issue pertaining to status of an officer whose case was recommended for promotion but who was issued a charge memo or who faced criminal case or who was placed under suspension before the order of actual promotion could be issued had been dealt with by the Courts as well as Department of Personnel and Trainingand the view taken in this behalf was that the recommendations of the DPC shall be treated as those in the sealed cover and the concerned officer can be promoted only when he comes out clean in the proceedings that came to be initiated against him that the case of the petitioner fell in the said category though his name was recommended by the DPC in the year 2015 two First Information Reports FIRs) were registered and a charge memo was issued against the petitioner before the actual order of promotion could be issued and that in these circumstances it could not be said that there was any deliberate act of contempt on the part of the respondents inasmuch as there existed a legal impediment to the implementation of the directions issued in OA No.3604 2015. The only contention of the counsel for the petitioner is that since neither on the date when the DPC was held nor on the date when OA No.3604 2015 was allowed and the respondents directed to promote the petitioner was the petitioner under suspension or under prosecution or any disciplinary proceeding had been initiated against him the subsequent FIRs registered against the petitioner and the charge memo issued to the W.P.(C) 2852 2021 petitioner could not come in the way of the promotion of the petitioner. Reference without citing is made to Union of India Vs. Anil Kumar Sarkar 4 SCC 161 Union of India Vs. Sangram Keshari Nayak 2007) 6 SCC 704 Rajesh Kumar Vs. Union of India 146DLT 588 Harsh Kumar Sharma Vs. State of Punjab 4 SCC 366 and to T. Sudhakar Prasad Vs. Govt. of A.P.1 SCC 516. 10. We have drawn the attention of the counsel for the petitioner to our recent judgment dated 6th April 2021 in W.P.(C) No.4152 2012 titled Union of India Vs. Rajiv Ranjan wherein referring to the OM dated 14th September 1992 issued pursuant to Union of India Vs. K.V. Jankiraman 1991) 4 SCC 109 and Clause 7 whereof is as under: is recommended “7. A government servant who promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.” and further referring to the General Principles forming part of the Guidelines for promotion of IPS Officers to various Grades enclosed to the letter dated 15th January 1999 of Ministry of Home Affairs and Clauses 21 and 21.1 whereof are as under: W.P.(C) 2852 2021 “21. SEALED COVER BEFORE PROMOTION 21.1 In the case of an officer recommended for promotion by the Screening Committee circumstances mentioned in Para 11 above arise before actual promotion cover procedure would have subsequent Committee shall assess the suitability of such officers along with other eligible candidates and place their assessment in sealed cover. The sealed cover covers will be opened on disciplinary case criminal prosecution exonerated he would be procedure outlined in Para 18 above and the question of grant of arrears would also be decided accordingly. If any penalty is imposed upon him as a result of disciplinary proceedings or if he is found guilty in the criminal prosecution against him sealed cover shall not be acted upon as outlined in Para 18.2. above." findings of in case We held as under: 28. We are unable to agree. The purport and intent of Clause 7 of OM dated 14th September 1992 and of Clauses 21 and 21.1 W.P.(C) 2852 2021 of the General Principles forming part of the Guidelines enclosed to the letter dated 15th January 1999 is that the government servant against whom disciplinary proceedings have been initiated after he has been recommended for promotion but before he is actually promoted should not be promoted. The same in our view is also in consonance with public policy. It will send a wrong message to the members of the public and to the employees and officers of the government if the employee officer against whom disciplinary proceedings are pending is promoted during the pendency thereof owing to the technicality of having been wrongfully denied promotion prior to commencement of proceedings. The respondent is a member of highly disciplined force like police and which is always in the public eye and to promote the respondent while disciplinary proceedings are pending against him would be injurious to the discipline in the force and be perceived as morally wrong. Of course if the respondent is exonerated his promotion will date back to the date when due. We thus asked the counsel for the petitioner whether not what CAT in the impugned order has held while closing the contempt case is in consonance with our view aforesaid. 11. The counsel for the petitioner states that he has not perused Rajiv Ranjan supra but is relying upon the judgments aforesaid of the Supreme Court and of the Division Bench of this Court. 12. Before referring to the judgments cited by the counsel for the petitioner we may refer to Union of India Vs. R.S. Sharma4 SCC 394. The said appeal was preferred against the order of CAT allowing the OA filed by the respondent therein and quashing the sealed cover procedure followed and directing the petitioner therein to give effect to the recommendation of the DPC. Supreme Court finding that the respondent by the time the matter came for consideration before the Supreme Court had W.P.(C) 2852 2021 not been promoted and that after the order of CAT formal sanction had been accorded for prosecution of the respondent therein held that Paragraph 7 of the OM dated 12th January 1988 which is similar to Clause 7 of the OM dated 14th September 1992 would apply and the recommendations made by DPC have to remain in the sealed cover until the respondent therein was completely exonerated of the charges against him. The contention on behalf of the respondent therein that the situation envisaged in Paragraph 7 would not have arisen if the sealed cover procedure followed by the DPC and which was quashed by CAT had not been followed or if the respondent had been promoted immediately after the order of CAT and that the faults delays of the petitioners could not be permitted to prejudice the respondent was rejected and it was held that the petitioners had acted in terms of Paragraph 7 and no fault could be found with their action. Accordingly the order of CAT was set aside. In Sangram Keshari Nayak supra cited by the counsel for the petitioner on the date when the DPC considered the respondent therein neither was the respondent under suspension nor were any prosecution or disciplinary proceedings pending against him. Finding so CAT and the High Court held that the DPC ought not to have followed the sealed cover procedure and directed the recommendation of the DPC to be given effect to. Though the Supreme Court in the judgment notices that charge sheet had been issued against the respondent therein on 24th September 1999 but proceeded to hold that there was no bar to the promotion of the respondent till the date his immediate junior was promoted on 27th August 1999 and dismissed the appeal of Union of India. R.S. Sharma supra was distinguished reasoning that in that case there were serious allegations of W.P.(C) 2852 2021 financial misdemeanour against the employee and Paragraph 7 of the OM dated 12th January 1988 was attracted. There is however no discussion in the judgment why the said Clause 7 was not applicable in the subject case. 14. Anil Kumar Sarkar supra also cited by the counsel for the petitioner was also a case where on the date of consideration by the DPC the employee was neither under suspension nor was any prosecution or disciplinary proceedings pending against him still the sealed cover procedure was followed by the DPC and which was quashed. Union of India as the employer before the Supreme Court relied on Clause 7 of the OM dated 14th September 1992 to contend that since after the order of CAT charge sheet had been filed the employee was not entitled to promotion R.S. Sharma supra was relied upon. Supreme Court however upheld the order of the High Court merely observing that R.S. Sharma supra was of no help to the Union of India. In Harsh Kumar Sharma supra also relied upon by the counsel for the petitioner however again it was held that Clause 7 of the OM dated 14th September 1992 clarifies that even after recommendation of the DPC but before the appointment promotion of the officer if the officer is suspended or disciplinary proceedings or prosecution has commenced against him his case under Clause 7 of the OM dated 14th September 1992 is to be deemed to be kept in sealed cover. 16. The other judgments cited by the counsel for the petitioner do not concern the aforesaid aspect and were cited in response to our query whether not the scope of interference with an order of CAT closing the contempt case should be in an extremely narrow compass considering that even under the Contempt of Courts Act 1971 the remedy against refusal by W.P.(C) 2852 2021 the High Court to entertain a contempt case is by way of a petition under Article 136 of the Constitution of India only and not by way of appeal. However in the facts of the present case it is not deemed appropriate by us to consider this aspect further and accordingly the need to refer to the other judgments cited also is not felt. 17. What thus emerges is that though Supreme Court in R.S. Sharma supra and in Harsh Kumar Sharma supra unequivocally held that even if the DPC wrongfully follows the sealed cover procedure and which is quashed and direction issued for giving effect to the recommendation of the DPC but still if before the actual promotion the circumstances in which sealed cover procedure is prescribed to be followed come into existence promotion is not be granted and is to await the outcome of the disciplinary proceedings or the prosecution but still in Sangram Keshari Nayak supra and Anil Kumar Sarkar supra notwithstanding existence of facts making Clause 7 of the OM dated 14th September 1992 applicable the order of CAT and or the High Court directing promotion to be granted was not interfered with. However while doing so neither in Sangram Keshari Nayak supra nor in Anil Kumar Sarkar supra was Clause 7 of OM dated 14th September 1992 held to be bad or was it laid down in what circumstances it would apply. To that extent one can say that there is dichotomy in the view of the Supreme Court in R.S. Sharma supra and Harsh Kumar Sharma supra on the one hand and in Sangram Keshari Nayak and Anil Kumar Sarkar supra on the other hand. All that we may say in this context is that while R.S. Sharma supra is a judgment by three Hon’ble Judges all the other three judgments are of Benches of two Hon ble Judges and that while R.S. Sharma and Harsh Kumar Sharma supra can be W.P.(C) 2852 2021 considered as precedent the same cannot be said of Sangram Keshari Nayak and Anil Kumar Sarkar supra to the extent of applicability of Clause 7 of the OM dated 14th September 1992. 18. We may in this context also notice that even before the Division Bench of this Court in the writ petition preferred by the respondents against the order dated 12th May 2016 of CAT it was the contention of the respondents that since after the order dated 12th May 2016 of CAT charge memo had been issued against the petitioner and disciplinary proceedings commenced the petitioner in accordance with Clause 7 of OM dated 14th September 1992 was not entitled to be promoted. The Division Bench of this Court in judgment dated 28th May 2018 though noted the said contention of the respondents herein but again did not pronounce or deal with the same and refused to interfere with the order of CAT. It was in the aforesaid state of law that we in Rajiv Ranjan supra held that though the relief ultimately granted in a lis relates back to the date of initiation of the lis and on which basis this Court exercising power of judicial review could not find any error in the order of CAT in that case but Courts in certain situations have also taken subsequent events since the institution of the lis into consideration and moulded the relief sought. It was further held that if notwithstanding disciplinary proceedings or prosecution having been initiated against a public servant the public servant is still granted promotion owing to the technicality of having been wrongly denied the same earlier it will not augur well for the morale of the employees who are public servants and will send a message to the public including public servants that an employee of doubtful integrity is being rewarded. A reference in this regard may be also made to State of Madhya W.P.(C) 2852 2021 Pradesh Vs. Syed Naseem Zahir 1993 Supp SCC 225 where events subsequent to the meeting of the DPC were taken into account while determining whether it was in the interest of justice to promote the respondent therein. In said case though on the date of DPC there was no requirement for DPC to follow the sealed cover procedure but the DPC had nevertheless followed the same. However finding that the government servant had come under a cloud after the DPC met but before formal order of promotion could be issued it was held that in such a situation it would be permissible not to give effect to the recommendation of the DPC pending inquiry. Mention may also be made of a dicta of a coordinate bench of this Bench in C.P. Gupta Vs. Union of India MANU DE 9131 2006 where also relying on Clause 7 of the OM dated 14th September 1992 promotion was kept in abeyance till the conclusion of the disciplinary proceedings initiated after the DPC but before the actual order of promotion. We would be failing in our duty if do not record that Syed Naseem Zahir and C.P. Gupta supra were cited before the Division Bench of this Court during the hearing of W.P.(C) No.10543 2017 preferred against the order dated 12th May 2016 of CAT allowing OA No.3604 2015 of the petitioner but were distinguished in the judgment dated 28th May 2018 reasoning that in both the said cases there were grave allegations of financial irregularity against the public servant. We may respectfully state that applicability of Clause 7 of the OM dated 14th September 1992 does not depend upon the nature of the disciplinary proceedings and is applicable whenever disciplinary proceedings have been initiated though after the date of the DPC recommending promotion but before the actual order of promotion. We may also add that the judgment dated 28th May 2018 was only concerned W.P.(C) 2852 2021 with the correctness of the order dated 12th May 2016 of CAT allowing OA No.3604 2015 and in which order no error could be found. On the contrary now we are concerned with the implementation of the order dated 12th May 2016 and at which stage the said Clause 7 of the OM dated 14th September 1992 is of relevance. Thus the question of the issue being res judicata does not arise. Even otherwise the issue involved is a pure question of law to which principles of res judicata do not apply. There can be no estoppel against law. 20. Mention may also be made of J. C. Thind Vs. Union of India MANU DE 0270 2015 where a Coordinate Bench of this Court followed Syed Naseem Zahir supra and held Anil Kumar Sarkar supra to be turning on its own fact and not applicable as a precedent. With reference to K.V. Jankiraman supra it was held that Courts are not to act mechanically and cannot ignore glaring facts and that if a government servant comes under a cloud after the DPC had met but before formal order of promotion could be issued it would be permissible not to give effect to the recommendation of the DPC pending inquiry. Rajiv Ranjan supra. 21. We thus see no reason to take a view different from that taken in 22. Of course if the petitioner in the present case had been promoted when his promotion according to CAT was due or even immediately after the order dated 12th May 2016 of CAT Clause 7 of OM dated 14th September 1992 would not have come in his way. However the fact of the matter is that for whatsoever may have been the reasons he was not so promoted and owing whereto Clause 7 of OM dated 14th September 1992 has now come into play. We as a Court would loathe to direct promotion W.P.(C) 2852 2021 of a public servant against whom prosecution and disciplinary proceedings are pending. It cannot also be lost sight of that the respondents against whom contempt case was initiated and was being pursued are bound by Clause 7 of OM dated 14th September 1992 and could not have acted in violation thereof by in compliance of order dated 12th May 2016 of CAT granting promotion to the petitioner when since the order of CAT much water had flown and to which eyes could not have been shut. 24. The view taken by CAT in the impugned order is thus a reasonable and lawful view which does not qualify as perverse for this Court to interfere therewith in exercise of power of judicial review. 25. Though during the hearing no mention thereof was made but we may mention that application respondents for review of judgment dated 28th May 2018 of dismissal of W.P.(C) No.10543 2017 being Review Petition No.34 2019 is also pending consideration. 26. Dismissed. RAJIV SAHAI ENDLAW J. APRIL 26 2021 AMIT BANSAL J. W.P.(C) 2852 2021 

Summary: In the sphere of departmental proceedings, if any disciplinary proceedings initiates after the recommendations for promotion has been received then such recommendation should be kept under sealed cover until the proceedings are discharged. The quorum of Rajiv Sahai Endlaw J. and Amit Bansal J. were faced with interdepartmental proceedings lis wherein the junior of the petitioner had been promoted whilst the recommendation for promotion of the petitioner was under sealed cover in Dinesh Singh V Dr. Ajay Bhusan Pandey [W.P.(C) 2852/2021].  Application no.OA No.3604/2015 was filed by the petitioner, an Officer of the Indian Revenue Service (Income Tax), of 1994 Batch, then working as Additional Commissioner of Income Tax, seeking promotion to the grade of Commissioner of Income Tax, with effect from 16th September, 2015, being the date when his immediate junior was promoted. CAT, in the order dated 12th May, 2016, found/observed/held that the petitioner fulfilled all the eligibility conditions for promotion and the Annual Performance Appraisal Reports of the petitioner for relevant years and also met the prescribed benchmark; and that the petitioner was neither facing any criminal case/disciplinary proceedings nor was under suspension. The petitioner had however not been promoted because the respondents had obtained the first stage advice of Central Vigilance Commission for initiation of major penalty proceedings against the petitioner and therefore the case of the petitioner for promotion had been put on hold. On account of no such pending charges there was no ground for withholding promotion of the petitioner. Accordingly, the OA was allowed and the respondents directed to promote the petitioner from the date on which his immediate junior had been promoted It was the contention of the counsel for the petitioner that the aforesaid order of CAT attained finality with the dismissal on 28th May, 2018 of W.P.(C) No.10543/2017 preferred by the has erred in closing the contempt case and not directing the implementation of its order dated 12th May, 2016 and in not punishing the respondents for contempt thereof. The court turned its attention to Union of India Vs. Rajiv Ranjan W.P.(C) No.4152/2012 wherein, referring to the OM dated 14th September, wherein it was held that a government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case if any disciplinary charges arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. The bench was of the opinion that though the relief ultimately granted in a lis relates back to the date of initiation of the lis. But Courts, in certain situations, have also taken subsequent events since the institution of the lis, into consideration and molded the relief sought. It was further held that if notwithstanding disciplinary proceedings or prosecution having been initiated against a public servant, the public servant is still granted promotion owing to the technicality of having been wrongly denied the same earlier, it will not augur well for the morale of the employees who are public servants and will send a message to the public including public servants, that an employee of doubtful integrity is being rewarded The judgment rendered by the Court read that “It cannot also be lost sight of, that the respondents, against whom contempt case was initiated and was being pursued, are bound by Clause 7 of OM dated 14th September, 1992 and could not have acted in violation thereof, by, in compliance of order dated 12th May, 2016 of CAT granting promotion to the petitioner, when since the order of CAT, much water had flown and to which eyes could not have been shut.”