2017 (1) TMI 1600 - Tri - Indian Laws

Promotion to the post of Commissioner of Income Tax - the promotion of applicant was not put in sealed cover as it was not approved - no criminal or disciplinary proceedings were pending against the applicant - Held that - On the date of consideration for promotion to the post of Commissioner of Income Tax by the DPC, i.e. 05.06.2015, no criminal or disciplinary proceedings were pending against the applicant. He was found fit by the DPC and recommended for promotion. ACC, however, did not approve his promotion and desired that all complaints be decided. As a matter of fact, no complaint was pending against the applicant. The only criminal case registered against him had been closed by the investigating agency (CBI) itself and the closure report filed u/s 173 CrPC was accepted by the Special Judge, CBI. The case of the applicant is squarely covered by the provisions contained in DOP&T office memorandum No.22011/4/91-Estt.(A) dated 14.09.1992, which came to be issued pursuant to the judgment of the Hon ble Supreme Court in Union of India etc. v K. V. Jankiraman 1991 (8) TMI 292 - SUPREME COURT where it was held that No promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/dereliction of duty etc., there is a serious complaint and the matter is still under investigation, the Government is within its right to suspend the official. In that case, the officer s case for promotion would automatically be required to be placed in the sealed cover. In the present case, no criminal or disciplinary proceedings were pending against the applicant as on the date of consideration of his case for promotion to the post of Commissioner of Income Tax, i.e. 15.06.2015, as the closure report in the criminal investigation against him had already been accepted by the Special Judge, CBI vide order dated 12.03.2014. Respondents are directed to implement the recommendations of DPC dated 05.06.2015. The applicant shall be entitled to notional promotion to the post of Commissioner of Income Tax from the date his juniors, namely, Satpal Gulati and B. Venkataswara Rao were promoted, and financial benefit from the date of actual promotion - application allowed.

Summary

Issues:
Promotion denial despite DPC recommendation and closure of criminal case

Analysis:
The case involved the denial of promotion to the applicant to the post of Commissioner of Income Tax despite being recommended by the Departmental Promotion Committee (DPC) in a meeting held on 05.06.2015. The applicant had a clean vigilance record, and no criminal or disciplinary proceedings were pending against him at the time of consideration for promotion. The only criminal case registered against him had been closed by the investigating agency, and the closure report was accepted by the Special Judge. The applicant's juniors were promoted while his name was omitted from the promotion order, leading to the filing of an Original Application (OA) seeking relief.

The respondents admitted that the applicant was recommended for promotion by the DPC and that the criminal proceedings against him had been closed. The Tribunal noted that the case was covered by provisions in the DOP&T office memorandum and previous judgments. The Tribunal cited the memorandum dated 14.09.1992 and its amendment dated 02.11.2012, emphasizing that a DPC should assess the suitability of a candidate without considering pending disciplinary cases or criminal prosecutions. The Tribunal referenced a similar case where the sealed cover procedure was found to be legally unsustainable when a second charge-sheet was issued after the applicant's exoneration from the first charge-sheet.

The Tribunal found that the applicant's case was in line with the judgments and the provisions of the office memorandum. As no criminal or disciplinary proceedings were pending against the applicant at the time of consideration for promotion, the denial of promotion was deemed unjust. The Tribunal allowed the OA, directing the respondents to implement the DPC's recommendations from 05.06.2015. The applicant was entitled to notional promotion from the date his juniors were promoted, financial benefits from the actual promotion date, and seniority over his juniors on the promoted post. The respondents were instructed to complete the process within three months from the date of the order without any costs incurred.