ORDER
Dr.. M.K. Sharma, J.
1. In the present writ petition the petitioner seeks for a writ of mandamus commanding the respondent to issue order of appointment in favour of the petitioner in the post of Director (Technical) for which post the petitioner was interviewed and was placed at serial No.1 in the panel.
2. The petitioner was promoted to the post of Chief Engineer in the Northern Coal Fields Ltd. in the year 1989. On 28.8.1990 the Central Bureau of Investigation registered a First Information Report against the petitioner on the allegation that he possessed assets disproportionate to his known sources of income. A writ petition was filed by the petitioner in the Calcutta High Court which was registered as C.R.No.133349(W) of 1990 in which a direction was issued to the departmental authorities of the petitioner to issue charge sheet to the petitioner in accordance with law. However, on 25.2.1993 CBI submitted a report to the effect that after thorough investigation it could not be proved beyond all reasonable doubts that the petitioner possessed assets disproportionate to his known sources of income. In the said report it was further stated that the case was not being sent for trial as the possession of disproportionate assets by the petitioner could not be proved beyond all reasonable doubt but there was material for departmental action and it was sent to his department to take departmental action for violation of the departmental rules.
3. After submission of such a report to the Special Judge, CBI, Dhanbad where the criminal case instituted against the petitioner was pending the Special Judge, CBI, Dhanbad accepted the report filed by the CBI and discharge the petitioner. Consequent thereto the Departmental Promotion Committee recommended the petitioner for further promotion to E-9 grade as Chief General Manager. The petitioner, thereafter became eligible for promotion to the next higher grade of Chief General Manager (Civil). However, due to the pendency of the proposed departmental action no promotion was given to the petitioner to the aforesaid post although he became eligible for such promotion and accordingly the petitioner again moved the Calcutta High Court in the pending writ petition. On the said application the Calcutta High Court by its order dated 10.6.1993 directed the Chairman-cum-Managing Director of Coal India Limited to intimate to the petitioner within 4 weeks as to who would be the Disciplinary Authority in the case of the petitioner in the Departmental Enquiry. On 9.7.1993 the Chairman-Cum-Managing Director of Coal India Limited appointed the Chairman-cum-Managing Director of Northern Coalfield Ltd. as the Disciplinary Authority for the proposed departmental enquiry to be initiated against the petitioner on the suggestion of the Central Bureau of Investigation. The Calcutta High Court thereafter disposed of the writ petition filed by the petitioner directing that the petitioner be promoted as Chief General Manager in terms of the report of the Departmental Promotion Committee subject to the outcome of the proposed departmental enquiry. The respondents were further given liberty to initiate departmental enquiry on the condition that the same would be completed within six months from the date of initiation of the same. It was also made clear that the petitioner would not be entitled to raise any issue to the effect that since the petitioner had been given promotion the allegations of misconduct, if any, would be treated as withdrawn or condoned. In pursuance of the order of the Calcutta High Court the petitioner was promoted to the rank/grade of Chief Genera Manager (Civil) by order dated 2.9.1993 and was posted in the Northern Coalfields Ltd.
4. A Memorandum of charges was issued to the petitioner by the disciplinary authority listing therein certain charges drawn against the petitioner and directing the petitioner to submit his written explanation to the charges levelled in the memorandum. The said memorandum of charge is dated 20.9.1993. The petitioner submitted his reply to the aforesaid charge memo. On 19.2.194 an office order was issued by the disciplinary authority of the petitioner exonerating him from the charges holding that he agreed to release the petitioner from the concerned charges of having disproportionate property, beyond the known sources. It was further mentioned in the said office order that upon examining in detail the reply/explanation submitted by the petitioner and the original documents, and also the report of the committee constituted by the disciplinary authority for examining the case in detail it was found that the related charges of having disproportionate properties beyond the known sources of income levelled against the petitioner could not be established. As the petitioner did the mistake with respect to form IV by not informing the management about the financial transactions the petitioner was directed by the disciplinary authority to inform in future about the financial transactions done by him or his family members.
5. By order issued on 8/10.4.1995 by Coal India Limited it was ordered that since the petitioner had been exonerated from the charges levelled against him the promotion of the petitioner on ad hoc basis in the post of Chief General Manager (Civil) is regularised w.e.f. 1.9.1993 and that his seniority position in M-3 grade would be reckoned as per the merit position as was assigned to him by the Departmental Promotion Committee. The petitioner was called for interview being held for the purpose of selection/appointment to the post of Director (Technical) which is one of the Board Level appointments in one of the subsidiaries of M/s. Coal India Limited. The aforesaid interview was conducted by the Public Enterprises Selection Board (hereinafter to be referred to as PESB) from 4th to 6th February, 1998 and the PESB constituted a panel in which the petitioner admittedly was placed at serial No.1, in order of merit.
6. However, on 27.2.1998 Mr. J.P.Singh, an officer whose name appeared at serial No.4 in the panel and who was junior to the petitioner was appointed as Director (Technical) and was posted in Northern Coalfields and accordingly the present writ petition seeking the aforesaid reliefs.
7. Mr. Vikas Singh, counsel appearing for the petitioner submitted that as of date no departmental proceeding is pending against the petitioner and therefore, he has no adverse report from the Vigilance angle as well and he having been placed at serial No.1 of the panel prepared by the PESB should have been appointed as Director (Technical) in preference to the claim of said Shri J.P.Singh. It was also contended that subsequent thereto 5 other officers namely Shri B.N.Paan, Shri R.M.Purekar, Shri R.P.Kumar, Shri S.V.Chaoji and Shri S.P.Singh who were placed down below in the panel than the petitioner have also been promoted to the post of Director (Technical).
8. Counsel appearing for respondent No.1 as also respondent No.2 submitted that the appointment to the post of Director (Technical) is to be made by the Appointment Committee of the Cabinet and that the said Appointment Committee of the Cabinet is not bound to accept the recommendation of the PESB which has the discretion either to accept or reject the recommendations so made. Counsel for respondent No.1 further submitted that no final decision has yet been taken for making appointment from the panel recommended by the PESB and that Shri J.P.Singh was appointed as Director (Technical) in Northern Coalfields Ltd. on the basis of recommendation of his name in the earlier panel of July, 1995 and not on the basis of recommendation of his name in the present panel. It was also submitted that the other 5 officers have been allowed to hold the post of Director (Technical) only as a stop-gap arrangement as a number of posts of Director (Technical) are vacant in the subsidiaries of Coal India Limited so as to tide over the immediate necessity. Counsel also pointed out that the officers whose names were recommended by PESB have to get due clearance from the Vigilance angle as well and without the same no appointment can not be made to a Board level post of the public sector Undertakings. It was also sought to be pointed out that there is a proposal for reviewing the order closing the departmental proceedings against the petitioner and therefore, so long as the petitioner is not cleared from the vigilance angle he cannot be so appointed to the said post although his name has been recommended by the PESB.
9. The petitioner was admittedly exonerated in the disciplinary proceedings initiated against him under office order dated 19.2.1994 holding that the charges levelled against the petitioner in the departmental proceedings could not be established. Subsequent to the aforesaid exoneration from the charges the petitioner was also regularised in the post of Chief General Manager (Civil) by office order dated 8/10th April, 1995 by Coal India Limited. It was submitted by the counsel appearing for the respondents that there is a proposal for revival of said departmental proceedings initiated and subsequently dropped against the petitioner, in view of the recommendations for such review by the Central Vigilance Commission.
10. To rebut the aforesaid contention the counsel for the petitioner relied upon the decision of the Supreme Court in Nagraj Shivarao Karjagi Vs. Syndicate Bank, Head Office, Manipal & another; (1991) 3 S 219, wherein it was held by the Supreme Court that the advice tendered by the Central Vigilance Commission is not binding on the bank or the punishing authority and it is not obligatory on the bank or the punishing authority to accept the advice of the Central Vigilance Commission. It was also held that the power and authority in the departmental proceedings is regulated by the statutory regulations, which leaves it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of misconduct proved in the case. The Supreme Court also observed that the disciplinary authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case and no third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. The learned counsel also relied upon the decision of the Supreme Court in Satyendra Chandra Jain Vs. Punjab National Bank & Others, in S.L.P. (Civil) No.564/1995 disposed of on 15.2.1996 in which the Supreme Court relied upon the decision of Nagraj Shivarao Karjagi (supra) for holding that the disciplinary authority would take the decision on the basis that the recommendation made by the Chief Vigilance Officer was not binding.
11. The aforesaid proposition laid down by the Supreme Court is a settled principle of law so far the advice and/or recommendation of the Central Vigilance Commission is concerned in respect of a disciplinary proceeding. The disciplinary authority cannot act at the dictate of a third party and has always to act in accordance with law and in terms of the provisions of the Rules of its own without being in any manner influenced by the dictate and/or recommendation of a third party. The disciplinary authority while exercising powers under the discipline and appeal rules exercises the power as a quasi judicial authority and acts as an independent authority and is not to be influenced by any third party influence and/or dictate.
12. Admittedly, the name of the petitioner is placed at serial No.1 of the panel recommended by the PESB for appointment to the post of Director (Technical) in the subsidiaries of Coal India Limited. The said recommendations, in accordance with the existing guidelines and the rules of executive business is to be placed before the concerned Ministry and the Appointment Committee of Cabinet for the purpose of approval and for taking a decision for appointment to the post of Director (Technical).
13. Counsel appearing for the respondent drew my attention to the office memorandum dated 29.7.1988 issued by the Ministry of Personnel and Public Grievances and Pension wherein it has been laid down that it would be the primary responsibility of the administrative ministry/ department concerned to ensure that the candidate whose appointment as Functional Director/CMDs in public sector enterprises is recommended for being considered to the Appointment Committee of the Cabinet should be cleared from the vigilance angle and that the Ministry/department concerned should bring those facts specifically to the notice of the Minister-in-Charge. It is also provided that in respect of those persons, who are already holding Board-level positions and who have been recommended for higher Board-level positions, the vigilance clearance may be ascertained, from the Central Vigilance Commission as also from other sources. Further guideline laid down therein is that as regards persons who were holding below Board-level positions in public sector enterprises, the Chief Vigilance Officer in the Ministry/Department concerned should be consulted besides the Chief Vigilance Officer in the public sector enterprise where the candidate may be working.
14. Subsequent to the issuance of the aforesaid office memorandum several other office memorandums came to be issued by the Ministry of Personnel, Public Grievances and Pension on the aforesaid subject and some of such office memoranda are dated 6.3.1995, 1.8.1996, 9.1.1997, 23.5.1997 and 31.12.1997. In the decision of Mr. Waris Rashid Kidwai Vs. Union of India & Others, C.W.P. No.431/1998 disposed of on 18.03.1998 a division bench of this court, of which I was a party, noticed the aforesaid circulars dated 6.3.1995, 1.8.1996, 9.1.1997, 23.5.1997 and 31.12.1997 and thereafter observed that PESB while sending its recommendation to the administrative ministry is also required to endorse a copy to the CVC so that it could initiate advance action for obtaining vigilance clearance. It was also observed that CVC while examining the antecedents of an officer already working for the public sector enterprises need not necessarily review the officer’s record from the very beginning and that if a person is functioning at a particular post the appointment to which was done after vigilance clearance, the CVC shall then limit the enquiry for the period spent in that particular post without going into the officer’s entire past career.
15. Thus it appears that subsequent to the issuance of the aforesaid office memorandum dated 29.7.1988 a change has been brought about in the procedure for scrutiny of the antecedents of persons recommended for Board Level Posts in public sector enterprises and also in the matter of their appointments to such posts.
16. Counsel appearing for respondent No.1 also brought to my notice a circular issued by the department of Personnel and Training, New Delhi on 25.1.1988 laying down that wherever the Ministry/Department departs from the recommendations of the PESB e.g. proposing the name of a person junior in the panel for appointment to a particular post in preference to a person whose name appears at a higher place in the panel recommended by the PESB, the Ministry/Department concerned has to submit a detailed justification therefor, if not already submitted by them, for information of the Appointments Committee of the Cabinet before placing their proposals before the Appointments Committee of the Cabinet. Counsel submitted that there is a proposal of the concerned Ministry/department to appoint persons placed lower down in the panel than the petitioner after giving justification thereof i.e. of not obtaining vigilance clearance in respect of the petitioner. The said proposal is still at the formative stage and has not reached any concrete shape as yet. The decision for such supersession and/or appointing a junior person in the panel is to be taken by the Appointments Committee of the Cabinet, after entire records are placed before it, which includes report from vigilance angle. However, in this connection reference may also be made to a decision of the Supreme Court in Union of India & Others Vs. N.P.Dhamania & Others; 1995 (Supp.) 1 S page 1, which may have some relevance to the aforesaid issue. The question that came up for consideration before the Supreme Court in that case was whether it was open to the A to differ from the recommendation of the Departmental Promotion Committee and, if so, whether the reasons must be given for so differing. The Supreme Court while answering the question by holding that though it was open to A to differ from the recommendations of DPC, also held that it must give reasons for so differing to ward off any attack of arbitrariness and the reasons have to be recorded in the file though there is no need to communicate the reasons to the officer affected. In the said case it was found that no reasons had been recorded in the file of A for differing from the decision of the DPC. The Supreme Court held that the A may reconsider the cases in the light of the following directions issued by the Supreme Court:
“The appointing authority shall consult the UPSC once again by making reference back to them indicating the reasons for making a departure from the panel recommended by the Commission and also forward the material on which it has reached the conclusion not to appoint the respondent and obtain their views before taking final decision in the matter. In case after consultation with the UPSC in the manner indicated above, the name of the respondent is restored to its original position as recommended by the UPSC, the case of the respondent for promotion to the post of Commissioner of Income Tax, shall be considered on merit and necessary orders be passed within 3 months from the date of the receipt of the file from the UPSC.”
17. A definite stand has been taken by respondent No.1 in its counter affidavit that the petitioner has been placed at serial No.1 of the panel recommended by the PESB and that after the aforesaid recommendation the cases of the persons so recommended would be examined from the vigilance angle and thereafter the cases of their appointment would be considered by the concerned Ministry and would be placed before the Appointments Committee of the Cabinet which is the Competent Authority. Further stand of respondent No.1 is that no final decision has yet been taken on the recommendation so made by the PESB for appointment to the post of Director (Technical) by the Competent Authority. Thus, it is clear and apparent that the recommendation of the PESB is yet to be placed before the Appointments Committee of the Cabinet who is to take a final decision in respect of appointment to the post of Director (Technical).
18. On scrutiny of the records it is also found that Shri J.P.Singh, who although is placed at serial No.4 in the present panel i.e. below the petitioner yet by virtue of his name being recommended for such appointment as Director (Technical) in the earlier panel prepared in the month of July, 1995 he has been appointed at Director (Technical), Northern Coalfields Limited. The said appointment, therefore, cannot be termed as a case of supersession against the claim of the petitioner. Since no decision has yet been taken by the Appointments Committee of Cabinet and no junior to the petitioner in the present panel has been promoted on regular basis to the post of Director (Technical), in my considered opinion, the present writ petition filed by the petitioner is premature. I have also no doubt in my mind that while considering the names in the panel and making appointment to the post of Director (Technical) the concerned Ministry and the Appointments Committee of the Cabinet would definitely take note of all the Memorandums referred to hereinabove issued by the Ministry of Personnel, Grievances and Pension on the subject of scrutiny of antecedents of persons recommended for Board-level posts in public sector enterprises and also laying down the procedure for consideration of their cases for appointment to such Board-level posts, and thereafter take a conscious decision in accordance with law and also in consonance with the principles of law on the subject laid down by the Supreme Court.
19. In terms of the aforesaid observations and directions the writ petition stands disposed of holding that the writ petition at this stage is premature, but with a liberty to the petitioner to approach this court in future if he is in any manner aggrieved by any decision of the respondents. No costs.