2018 (7) TMI 1560 - HC - Indian Laws

Eligibility to get promoted to the rank of CIT - Held that - When the DPC was held on 05.06.2015, for making recommendations for promotion to the post of CIT, the name of the respondent No.1 was duly included in the list of eligible candidates and he was found fit for being promoted. At that point in time, admittedly, none of the three categories carved out clause 2 of the O.M. dated 14.09.1992, were available to the petitioners to exclude the name of the respondent No.1 and adopt a sealed cover procedure for him. The respondent No.1 was neither under suspension, nor had he been chargesheeted by the Department, nor were any criminal proceedings pending against him. After the respondent No.1 was assessed by the DPC for suitability, his name had been forwarded to the Competent Authority, namely, the ACC for making promotions. It was only at that stage that the ACC had desired to know the status of any complaint pending against the respondent No.1. By that time, the Ministry of Home Affairs had intimated the petitioners that it had received the first stage advice by the CVC on 26.06.2015, for initiating major penalty proceedings against the respondent No.1. It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent No.1. The position remained the same when the O.A. filed by the respondent No.1 was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted. Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15.

Summary

Issues Involved:
1. Validity of the Tribunal's judgment directing the promotion of respondent No.1.
2. Application of the sealed cover procedure as per O.M. dated 14.09.1992.
3. Impact of pending disciplinary proceedings on promotion eligibility.

Issue-wise Detailed Analysis:

1. Validity of the Tribunal's Judgment Directing the Promotion of Respondent No.1:
The Tribunal directed the petitioners to promote respondent No.1 from the date his juniors were promoted, relying on the Supreme Court's decision in Union of India Vs. K.V.Jankiraman. The Tribunal noted that at the time of the DPC, respondent No.1 had vigilance clearance and no disciplinary case pending. The Tribunal emphasized that pending complaints or intentions to initiate major penalty proceedings do not suffice to deny promotion. This judgment was challenged by the petitioners, who argued that the issuance of a charge-sheet on 06.02.2017 justified the sealed cover procedure.

2. Application of the Sealed Cover Procedure as per O.M. dated 14.09.1992:
The O.M. dated 14.09.1992 outlines that sealed cover procedure applies to government servants under suspension, those issued a charge-sheet with pending disciplinary proceedings, and those with pending criminal prosecution. The Tribunal found that at the time of the DPC on 05.06.2015, none of these conditions applied to respondent No.1. The petitioners contended that the subsequent issuance of a charge-sheet warranted the sealed cover procedure, but the Tribunal and the High Court held that the relevant date for eligibility was when the DPC convened, not when the charge-sheet was later issued.

3. Impact of Pending Disciplinary Proceedings on Promotion Eligibility:
The High Court examined the O.M. dated 14.09.1992 and relevant case law, including K.V.Jankiraman, which clarified that disciplinary proceedings commence only when a charge-sheet is issued. Since respondent No.1 was neither under suspension nor charge-sheeted at the time of the DPC, the High Court concluded that the sealed cover procedure was inapplicable. The High Court also distinguished the present case from others like Syed Naseem Zahir and C.P.Gupta, where the facts involved pending or issued charge-sheets at relevant times.

Conclusion:
The High Court upheld the Tribunal's judgment, directing the petitioners to promote respondent No.1 with all consequential benefits, as the sealed cover procedure was not justified under the given circumstances. The petition was dismissed, and the petitioners were ordered to implement the judgment within six weeks.