A.D. Khadtare Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. the applicant who is serving as an additional commissioner in central excise and customs has moved this o.a. challenging the withholding of his promotion to the rank of commissioner by the respondents though his name is in the panel and persons below him in panel have been promoted. he has prayed that the respondents be directed to promote him to the post of commissioner, customs and central excise with effect from 10.6.2000 when persons below him in the panel were promoted with all consequential benefits including arrears of salary and seniority etc. according to the case of the applicant, he had joined the service as a direct recruit group 'a' officer in the year 1974 as assistant collector at customs house. he was later promoted to the post of dy. collector in the year 1983 and in due course of time also received promotion to the post of additional commissioner in the year 1989. he is now due for promotion to the post of commissioner and his name has already been empanelled for promotion to the post of commissioner. he has however not been given promotion and the officers below him in the panel have been given promotion though no criminal case or any departmental inquiries are pending against him. according to him in the year 1994 he was served with a major penalty charge sheet under rule 16 of the ccs (cca) rules. he denied the allegation made against him and made his representation explaining the position. the entire case was thereafter placed before upsc and the upsc advised that the charges against the applicant are not tenable and that the inquiry against him be dropped. the entire matter was thereafter placed before the competent authority and after careful consideration for all the aspects of the matter including the advice of the upsc, the competent authority ordered exoneration of the applicant and dropping of the charges against him. he therefore stands exonerated of all charges leveled against him. except the above mentioned charge sheet, there was no other charge sheet issued to the applicant during his entire service career and presently also the applicant is not facing any departmental proceedings. he is also not facing any criminal prosecution nor any criminal case was lodged against him at any time. since no departmental proceedings or criminal case was pending against him, he was duly considered by the dpc which met in december' 99 for promotion to the post of commissioner. the dpc had not resorted to sealed cover procedure and his name was actually placed in the panel for promotion to the next higher post of commissioner. he was however, shocked and surprised when he found that he was not given the promotion order while officials below him in the panel, were given the promotion orders. according to the applicant such an action on the part of the respondents to withhold his promotion is illegal and against the established principles of service jurisprudence.2. the respondent no. 1 and 2 have resisted the o.a. and in their reply they have contended inter alia that the dpc which met on 21.12.99 had prepared a panel for vacancy for the years 1998-99 and 1999-2000 and had duly considered the applicant's case for the first time, for promotion to the grade of commissioner, customs and central excise. at that time, the applicant was certified to be clear from vigilance angle since no departmental or criminal proceedings were pending against him.however, before the issuance of the order of promotion of 10.6.2000, pursuant to the recommendations made by the said dpc, sanction for prosecution of the applicant came to be accorded by the competent authority vide his order dated 8.6.2000 to cbi in response to its proposal with respect of a criminal proceeding against the applicant pending in a court of law. it is further contended that this sanction to prosecute the applicant was granted by the concerned authorities after carefully perusing the various records including the statement of witness is and documents furnished by the cbi and this was a sanction for prosecution under section 19(1)(a) of the prevention of corruption act, 1988. in view of this sanction to prosecute granted, the applicant's case has been kept in a sealed cover in view of govt. of india's o.m. dated 14.9.92 as the same had been granted before the recommendations of the said dpc could be actually acted upon. the respondents have admitted that few officials junior to the applicant have come to be promoted to the grade of commissioner of central excise and customs but according to them, the recommendations of the dpc so far the applicant was concerned, had to be kept in a sealed cover because of the sanction to prosecute being granted afterwards. they have prayed that the o.a. be dismissed with costs.3. we have heard the learned advocates of both the parties at length and with their consent, we are disposing of this o.a. finally at the admission stage.4. a short question that arises for our decision in this o.a. is whether promotion of an empanelled employee can be withheld by adopting sealed cover procedure because of the sanction to prosecute him is received at the time of his promotion? it is an uncontroverted fact that when the dpc met on 14/21.12.99 for preparing the panel for vacancies for the year 1998-99 and 1999-2000, no disciplinary case or criminal case was pending against the applicant and it was certified that his case was clear from vigilance angle. it is also not in dispute that the dpc had selected the applicant and empanelled him for promotion to the post of commissioner, central excise and customs. it is also not in dispute that the charge sheet was given to the applicant on 9.2.94 and subsequent to his representation with regard to this charge sheet on the recommendation of the upsc that no case was made out against him, the charges leveled against him were dropped by the authority concerned. the order dated 25.4.1996, annexure a/3 issued by the under secretary to the govt. of india in ministry of finance reads as under:-- "now therefore, the president after taking in consideration the facts of the case, submission of the charged officer and upsc advise, has ordered to exonerate shri. a.d. khadtare from the charges and drop the proceedings against him." hence the charges leveled against the applicant were dropped w.e.f.25.4.96 and on dated 21.12.99 when the dpc met for preparing a panel for the vacancy for the year 1998-99 and 1999-2000, no departmental proceedings were pending against the applicant. admittedly no criminal proceeding were also pending against the applicant and therefore dpc considered the applicant fit for promotion and empanelled him. however, when the turn of the applicant came for promotion from the select panel, he was not given the promotion and officials below him in the select panel were given promotion w.e.f. 10.6.2000. the reason given by the respondents in their reply is that because the competent authority had accorded sanction for prosecution of the applicant under section 19(1) (a) of the prevention of corruption act, 1988 in view of the various records, statement of the witnesses and documents furnished by the cbi, the applicant's case has been kept in a sealed cover. it is also stated in the reply that this action has been taken in terms of the instructions contained in para 7 of the govt. of india office memorandum dated 14.9.92.5. mr. kureshi, learned advocate appearing for the applicant has vehemently submitted that the o.m. dated 14.9.92 referred to by the respondents in their reply and strongly relied upon, nowhere provides that on receiving the sanction for prosecution, the promotion case of a govt. employee can be kept in a sealed cover or can be withheld. he has pointed out that the o.m. in terms proceeds on the line of the guidelines given by the supreme court in jankiraman's case, air 1991 sc 2010 and the supreme court also has in jankiraman's case not dealt with the case where, after empanelment sanction for prosecution is received and on that ground the promotion of an employee can be kept in a sealed cover. according to him, sealed cover procedure can be adopted only when the disciplinary proceedings or a criminal case is pending when the dpc is convened for consideration of the promotion. he has further submitted that sanction to prosecute does not give rise to a situation where the promotion of a govt. servant can be withheld indefinitely. it cannot be equated with the pendency of the criminal trial and therefore the promotion cannot be withheld.6. mr. rao, learned advocate for the respondents on the other hand has submitted that because cbi had collected some evidence against the applicant and had obtained sanction to prosecute under section 19(1)(a) of the prevention of corruption act, 1988 against the applicant, promotion of the applicant is withheld. according to mr. rao, an employee has a right to be considered for selection but he has no indefeasible right to be appointed or promoted to the post. when his turn came for promotion, the applicant was found to be under cloud and therefore his case has been kept in a sealed cover.7. the respondents have not come out with any clarification as to whether the sanction to prosecute is obtained by the cbi for the same charges for which the charge sheet was given to the applicant and subsequently the same was dropped. it is also not clear whether after obtaining the sanction to prosecute, the cbi had taken any further action in the matter and whether any charge sheet is filed in a criminal court against the applicant. it is also not clear from the reply as to when the sanction for prosecution of the applicant is received by the cbi. in fact, no such sanction for prosecution is produced on record by the respondents and there is absolutely nothing on record except the reply of the respondents to show that the promotion case of the applicant is kept in a sealed cover merely because the sanction for prosecution is obtained against the applicant.8. so far the sealed cover procedure adopted by the respondents is concerned, the law in this regard is well settled in view of the decision of the supreme court in union of india v. k.b. jankiraman and various decisions thereafter. the dpc could have adopted the sealed cover procedure, if the applicant on the date on which the dpc met was facing any departmental proceedings or was under suspension or a charge sheet in a criminal court was filed against him. if none of the above mentioned factors were in existence, then, it was not open for the dpc to adopt the sealed cover procedure for the applicant. since none of the above contingencies were in existence so far the case of the applicant was concerned when the dpc met, the dpc had rightly selected the applicant and placed him on panel for promotion. in the case of union of india v. dr. (mrs.) sudha salhan, 1998(5) slr 473, relying on the decision in the case of k.b. jankiraman, (1991) 4 scc 109, the supreme court has observed as under:-- "4. the question, however, stands concluded by a three-judge decision of this court in union of india and ors. v. k.b. jankiraman and ors., 1991(4) scc 109 : [1991 (5) slr 602 (sc)] in which the same view has been taken. we are in respectful agreement with the above decision. we are also of the opinion that if on the date on which the name of a person is considered by the departmental promotion committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. the recommendations of the departmental promotion committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. it is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendations of the departmental promotion committee would be opened, and the recommendation would be given effect to." these observations stipulates that the recommendations of the departmental promotion committee can be placed in sealed cover only and only if some departmental proceedings were pending or initiated or any criminal charge sheet had been filed and the criminal trial was pending or such person was under suspension. the sealed cover procedure is nowhere contemplated in the case of sanction to prosecute. in the o.m.dated 14.9.92 of the govt. of india, the sealed cover procedure is neither contemplated nor recommended in the cases where sanction for prosecution is granted. the reason is obvious. the sanction for prosecution may or may not result into the filing of the charge sheet against the accused and on subsequent criminal trial, the agency who has obtained the sanction for prosecution may on the receipt of further evidence decide of not filing the charge sheet against the accused person. the govt. may also subsequently revoke the sanction for prosecution. the same can also be set aside by the courts if challenge therein. hence a sanction for prosecution does not bring a govt.servant, against whom the same is obtained, under a cloud. his promotion can be withheld only if the sanction for prosecution is ultimately converted into a criminal charge sheet against him and the charge sheet is filed in the criminal court. merely because the sanction for prosecution is obtained against a particular govt.servant, he cannot be debarred from getting his due promotion, all the more when he is found suitable for the same and selected by the dpc. we are therefore of the opinion that it was not open to the respondents to adopt sealed cover procedure and keep the name of the applicant in sealed cover when his turn for promotion had come. we also hold that the adoption of the sealed cover procedure by the respondents in the case of the applicant was contrary to the guidelines issued in this regard and contrary to the settled law in this regard. since there was no other reason for not promoting the applicant to the post of commissioner, central excise and customs, we hold that the action of the respondents in not promoting him when his turn came was clearly arbitrary and illegal.9. in the result therefore, we allow the o.a. and direct the respondents to give effect to the recommendations of the dpc so far the applicant is concerned and promote him retrospectively from the date of his immediate junior in the list i.e., w.e.f. 10.6.2000 with all consequential benefits including arrears of pay and seniority. this exercise be carried out within a period of three months from the date of the receipt of a copy of this order. no order as to costs.

Judgment:
1. The applicant who is serving as an Additional Commissioner in Central Excise and Customs has moved this O.A. challenging the withholding of his promotion to the rank of Commissioner by the respondents though his name is in the panel and persons below him in panel have been promoted. He has prayed that the respondents be directed to promote him to the post of Commissioner, Customs and Central Excise with effect from 10.6.2000 when persons below him in the panel were promoted with all consequential benefits including arrears of salary and seniority etc. According to the case of the applicant, he had joined the service as a direct recruit Group 'A' officer in the year 1974 as Assistant Collector at Customs House. He was later promoted to the post of Dy. Collector in the year 1983 and in due course of time also received promotion to the post of Additional Commissioner in the year 1989. He is now due for promotion to the post of Commissioner and his name has already been empanelled for promotion to the post of Commissioner. He has however not been given promotion and the officers below him in the panel have been given promotion though no criminal case or any departmental inquiries are pending against him. According to him in the year 1994 he was served with a major penalty charge sheet under Rule 16 of the CCS (CCA) Rules. He denied the allegation made against him and made his representation explaining the position. The entire case was thereafter placed before UPSC and the UPSC advised that the charges against the applicant are not tenable and that the inquiry against him be dropped. The entire matter was thereafter placed before the competent authority and after careful consideration for all the aspects of the matter including the advice of the UPSC, the competent authority ordered exoneration of the applicant and dropping of the charges against him. He therefore stands exonerated of all charges leveled against him. Except the above mentioned charge sheet, there was no other charge sheet issued to the applicant during his entire service career and presently also the applicant is not facing any departmental proceedings. He is also not facing any criminal prosecution nor any criminal case was lodged against him at any time. Since no departmental proceedings or criminal case was pending against him, he was duly considered by the DPC which met in December' 99 for promotion to the post of Commissioner. The DPC had not resorted to sealed cover procedure and his name was actually placed in the panel for promotion to the next higher post of Commissioner. He was however, shocked and surprised when he found that he was not given the promotion order while officials below him in the panel, were given the promotion orders. According to the applicant such an action on the part of the respondents to withhold his promotion is illegal and against the established principles of service jurisprudence.

2. The respondent No. 1 and 2 have resisted the O.A. and in their reply they have contended inter alia that the DPC which met on 21.12.99 had prepared a panel for vacancy for the years 1998-99 and 1999-2000 and had duly considered the applicant's case for the first time, for promotion to the grade of Commissioner, Customs and Central Excise. At that time, the applicant was certified to be clear from vigilance angle since no departmental or criminal proceedings were pending against him.

However, before the issuance of the order of promotion of 10.6.2000, pursuant to the recommendations made by the said DPC, sanction for prosecution of the applicant came to be accorded by the competent authority vide his order dated 8.6.2000 to CBI in response to its proposal with respect of a criminal proceeding against the applicant pending in a Court of law. It is further contended that this sanction to prosecute the applicant was granted by the concerned authorities after carefully perusing the various records including the statement of witness is and documents furnished by the CBI and this was a sanction for prosecution under Section 19(1)(a) of the Prevention of Corruption Act, 1988. In view of this sanction to prosecute granted, the applicant's case has been kept in a sealed cover in view of Govt. of India's O.M. dated 14.9.92 as the same had been granted before the recommendations of the said DPC could be actually acted upon. The respondents have admitted that few officials junior to the applicant have come to be promoted to the grade of Commissioner of Central Excise and Customs but according to them, the recommendations of the DPC so far the applicant was concerned, had to be kept in a sealed cover because of the sanction to prosecute being granted afterwards. They have prayed that the O.A. be dismissed with costs.

3. We have heard the learned advocates of both the parties at length and with their consent, we are disposing of this O.A. finally at the admission stage.

4. A short question that arises for our decision in this O.A. is whether promotion of an empanelled employee can be withheld by adopting sealed cover procedure because of the sanction to prosecute him is received at the time of his promotion? It is an uncontroverted fact that when the DPC met on 14/21.12.99 for preparing the panel for vacancies for the year 1998-99 and 1999-2000, no disciplinary case or criminal case was pending against the applicant and it was certified that his case was clear from vigilance angle. It is also not in dispute that the DPC had selected the applicant and empanelled him for promotion to the post of Commissioner, Central Excise and Customs. It is also not in dispute that the charge sheet was given to the applicant on 9.2.94 and subsequent to his representation with regard to this charge sheet on the recommendation of the UPSC that no case was made out against him, the charges leveled against him were dropped by the authority concerned. The order dated 25.4.1996, Annexure A/3 issued by the Under Secretary to the Govt. of India in Ministry of Finance reads as under:-- "Now therefore, the President after taking in consideration the facts of the case, submission of the charged officer and UPSC advise, has ordered to exonerate Shri. A.D. Khadtare from the charges and drop the proceedings against him." Hence the charges leveled against the applicant were dropped w.e.f.

25.4.96 and on dated 21.12.99 when the DPC met for preparing a panel for the vacancy for the year 1998-99 and 1999-2000, no departmental proceedings were pending against the applicant. Admittedly no criminal proceeding were also pending against the applicant and therefore DPC considered the applicant fit for promotion and empanelled him. However, when the turn of the applicant came for promotion from the select panel, he was not given the promotion and officials below him in the select panel were given promotion w.e.f. 10.6.2000. The reason given by the respondents in their reply is that because the competent authority had accorded sanction for prosecution of the applicant under Section 19(1) (a) of the Prevention of Corruption Act, 1988 in view of the various records, statement of the witnesses and documents furnished by the CBI, the applicant's case has been kept in a sealed cover. It is also stated in the reply that this action has been taken in terms of the instructions contained in para 7 of the Govt. of India office memorandum dated 14.9.92.

5. Mr. Kureshi, learned advocate appearing for the applicant has vehemently submitted that the O.M. dated 14.9.92 referred to by the respondents in their reply and strongly relied upon, nowhere provides that on receiving the sanction for prosecution, the promotion case of a Govt. Employee can be kept in a sealed cover or can be withheld. He has pointed out that the O.M. in terms proceeds on the line of the guidelines given by the Supreme Court in Jankiraman's case, AIR 1991 SC 2010 and the Supreme Court also has in Jankiraman's case not dealt with the case where, after empanelment sanction for prosecution is received and on that ground the promotion of an employee can be kept in a sealed cover. According to him, sealed cover procedure can be adopted only when the disciplinary proceedings or a criminal case is pending when the DPC is convened for consideration of the promotion. He has further submitted that sanction to prosecute does not give rise to a situation where the promotion of a Govt. servant can be withheld indefinitely. It cannot be equated with the pendency of the criminal trial and therefore the promotion cannot be withheld.6. Mr. Rao, learned Advocate for the respondents on the other hand has submitted that because CBI had collected some evidence against the applicant and had obtained sanction to prosecute under Section 19(1)(a) of the Prevention of Corruption Act, 1988 against the applicant, promotion of the applicant is withheld. According to Mr. Rao, an employee has a right to be considered for selection but he has no indefeasible right to be appointed or promoted to the post. When his turn came for promotion, the applicant was found to be under cloud and therefore his case has been kept in a sealed cover.

7. The respondents have not come out with any clarification as to whether the sanction to prosecute is obtained by the CBI for the same charges for which the charge sheet was given to the applicant and subsequently the same was dropped. It is also not clear whether after obtaining the sanction to prosecute, the CBI had taken any further action in the matter and whether any charge sheet is filed in a criminal Court against the applicant. It is also not clear from the reply as to when the sanction for prosecution of the applicant is received by the CBI. In fact, no such sanction for prosecution is produced on record by the respondents and there is absolutely nothing on record except the reply of the respondents to show that the promotion case of the applicant is kept in a sealed cover merely because the sanction for prosecution is obtained against the applicant.

8. So far the sealed cover procedure adopted by the respondents is concerned, the law in this regard is well settled in view of the decision of the Supreme Court in Union of India v. K.B. Jankiraman and various decisions thereafter. The DPC could have adopted the sealed cover procedure, if the applicant on the date on which the DPC met was facing any departmental proceedings or was under suspension or a charge sheet in a criminal Court was filed against him. If none of the above mentioned factors were in existence, then, it was not open for the DPC to adopt the sealed cover procedure for the applicant. Since none of the above contingencies were in existence so far the case of the applicant was concerned when the DPC met, the DPC had rightly selected the applicant and placed him on panel for promotion. In the case of Union of India v. Dr. (Mrs.) Sudha Salhan, 1998(5) SLR 473, relying on the decision in the case of K.B. Jankiraman, (1991) 4 SCC 109, the Supreme Court has observed as under:-- "4. The question, however, stands concluded by a Three-Judge decision of this Court in Union of India and Ors. v. K.B. Jankiraman and Ors., 1991(4) SCC 109 : [1991 (5) SLR 602 (SC)] in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendations of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendations of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to." These observations stipulates that the recommendations of the Departmental Promotion Committee can be placed in sealed cover only and only if some departmental proceedings were pending or initiated or any criminal charge sheet had been filed and the criminal trial was pending or such person was under suspension. The sealed cover procedure is nowhere contemplated in the case of sanction to prosecute. In the O.M.dated 14.9.92 of the Govt. of India, the sealed cover procedure is neither contemplated nor recommended in the cases where sanction for prosecution is granted. The reason is obvious. The sanction for prosecution may or may not result into the filing of the charge sheet against the accused and on subsequent criminal trial, the agency who has obtained the sanction for prosecution may on the receipt of further evidence decide of not filing the charge sheet against the accused person. The Govt. may also subsequently revoke the sanction for prosecution. The same can also be set aside by the Courts if challenge therein. Hence a sanction for prosecution does not bring a Govt.

servant, against whom the same is obtained, under a cloud. His promotion can be withheld only if the sanction for prosecution is ultimately converted into a criminal charge sheet against him and the charge sheet is filed in the criminal Court. Merely because the sanction for prosecution is obtained against a particular Govt.

servant, he cannot be debarred from getting his due promotion, all the more when he is found suitable for the same and selected by the DPC. We are therefore of the opinion that it was not open to the respondents to adopt sealed cover procedure and keep the name of the applicant in sealed cover when his turn for promotion had come. We also hold that the adoption of the sealed cover procedure by the respondents in the case of the applicant was contrary to the guidelines issued in this regard and contrary to the settled law in this regard. Since there was no other reason for not promoting the applicant to the post of Commissioner, Central Excise and Customs, we hold that the action of the respondents in not promoting him when his turn came was clearly arbitrary and illegal.

9. In the result therefore, we allow the O.A. and direct the respondents to give effect to the recommendations of the DPC so far the applicant is concerned and promote him retrospectively from the date of his immediate junior in the list i.e., w.e.f. 10.6.2000 with all consequential benefits including arrears of pay and seniority. This exercise be carried out within a period of three months from the date of the receipt of a copy of this order. No order as to costs.