ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicant at the time of filing the Original Application (January, 2005) had been working as Managing Director of Delhi Khadi Board. He belonged to the 1970 batch of the officers of IAS. The application had been filed being aggrieved about his non-promotion to the rank/scale of Secretary to the Government of India, as, according to him, his claim had been cleared by the Screening Committee during December, 2003. It had been urged that when the Screening Committee prepared the panel for the rank of Secretary, there were no charge sheets issued to him nor were any charges framed against him. What was there was only placement of First Information Reports. This position was there upto August, 2004, and that too at a time when vacancies were there available to which he could have been accommodated. The reliefs prayed for were for quashing the order dated 06.10.2004, which effectively had turned down his request for promotion in the following terms:
I am directed to refer to your letter dated 20th August, 2004 on the subject mentioned above and to say that your case has been duly considered by the Screening Committee for assessing your suitability for empanelment to the Secretary’s Grade in the Cadre. You have, however, not been promoted to the Secretary’s Grade in the Cadre as in the meanwhile the Central Government had granted sanction for your prosecution under the Prevention of Corruption Act, 1988 in FIRs No. RC/ACI-2003 A0001 and RC.25(A)/2003-DLI registered by the CBI.
2. A further direction sought for was to open the sealed cover to implement the recommendations effective from December, 2003. There is also a prayer that Office Memorandum dated 14.9.1992 should be declared as ultra vires so far as Para 7 of the same was concerned, which gave unqualified discretion on the administration to deny promotion, in cases where disciplinary proceedings were pending against officers.
3. As could be seen from the stand of the respondents, adoption of sealed cover procedure was authorized and valid and the allegation that rights of the applicant have been violated, had no substance. Further, the applicant could have grievance only if promotions were given to his juniors overlooking him and such contingency had never taken place. A policy decision had been taken, as a result of which promotions were not being awarded to the officers in the select list, since a process of restructuring was in progress. This had nothing with particular reference to the applicant’s cause. According to respondents also, existence of vacancies by itself did not impose a corresponding obligation on the part of the Government to fill up the post. The criminal proceedings as against the applicant were pending, and in the meanwhile, charge sheets came to be issued to him in two cases. The governing norms did not permit an officer to claim promotions, at this stage, and he had been advised accordingly.
4. The matter was heard by a Bench of the Tribunal, initially. Hon’ble Mr. Justice B. Panigrahi, Chairman, who presided over, vide an order dated 04.01.2005, held that it was not possible to agree with the contentions of the applicant for issuing a direction to the respondents to give him promotion to the post of a Secretary’s grade. As seen from the order, Chairman had adverted in detail to the facts presented, and analyzing the impact of the judgment in Union of India and Ors. v. K.V. Janakiraman and Ors. , Union of India v. Kewal Kumar and Union of India and Anr. v. R.S. Sharma , had held that denial of promotion in the circumstances could not be treated as a penalty but could be endorsed as a necessary consequence of the conduct of the concerned person. While considering an employee for promotion, his whole service records were to be taken into consideration. The steps resorted to could not have been considered as objectionable, and application was, according to him, liable to be dismissed.
5. Hon’ble Mr. M.P. Singh, Vice Chairman (A), who had shared the Bench with the Chairman, had disagreed with the conclusion and findings as recorded and had separately given his reasons leading to an opposite conclusions by order of the same date. It has been found that denial of promotion to the applicant in the grade of Secretary from March, 2004 was illegal and totally unjustified. According to him, the application was liable to be allowed. The respondents were to be required to be directed to consider the appointment of the applicant from March, 2004 as Secretary to Government, since he had already been empanelled for promotion and there was nothing against him during March, 2004 as a disabling circumstance when paragraph 2 of Circular dated 14.09.1992 issued by the DOP&T, which was the lone guideline, which was to be taken notice of.
6. In view of the difference of opinion so recorded, the Bench had directed the matter to be placed before a third member. Hon’ble Mr. Justice M.A. Khan, Vice Chairman (J) had heard the matter, as could be seen from the proceedings, but since he had to demit office in the course of the proceedings, he had placed the file back with the Chairman without rendering an opinion about merits. The O.A. is placed before me in the aforesaid background.
7. I had opportunity to hear Mr. G.D. Gupta, Sr. Counsel appearing on behalf of the applicant. Ms. Jyoti Singh appeared on behalf of the respondents.
8. The former Chairman as also the Vice Chairman, and the respective counsels had in themselves highlighted the full facts, and had adverted to the lis that had been presented. Respective counsels had adverted to the questions of fact and law in great detail. I am unreservedly inclined to agree with the view taken by the Chairman that the applicant cannot be granted any relief at this point of time. Therefore, what is now required is only to point out as to why it has not been possible for me to agree with the reasoning and the conclusion that has been recorded by the Vice Chairman in his order, and that alone might be expected of a third member, in the event of a difference of opinion.
9. A perusal of the application would indicate that principally two grounds had been urged, in an attempt to show that applicant’s claims are overlooked and rights have been superseded. The first is that the sealed cover procedure adopted was irregular as on the date of screening, there were no charges laid against him. The second submission was that as there were clear vacancies in existence, in the interregnum, when the applicant had no legal disability for being promoted, it should have been the duty of the respondents to promote him. Government was obliged to confer on him promotion when it is found that he had been cleared by the DPC in the course of selection proceedings. But when the full factual position is made clear, it has ultimately turned out that the two contentions have little merit, and it may not be possible for the applicant to take advantage from the situation.
10. The applicant was working as Vice Chairman of the Delhi Development Authority in the cadre of Additional Secretary from the year 2000 onwards. During March, 2003, it appears that the CBI had registered several criminal cases against him under the Prevention of Corruption Act. He had been arrested on 03.04.2003. Consequently, he was deemed as placed under suspension effective from that date. He had come on bail later on, and on 0.09.2003, the suspension order had been revoked. It is not disputed that the sealed cover pertaining to him containing the decision of the DPC had been opened at that point of time. Since he had been found as fit for promotion, steps were taken to promote him. It was mandatory that vigilance clearance was to be there as per the instructions of the DOP&T. However, the proposal for promotion had been returned on 22.04.2004 with a file noting that the orders can await till such time the process of cadre restructuring was in progress. It so happened that sanction for prosecution in respect of the cases had been issued by the Government on 01.07.2004 and 12.07.2004 in respect of two cases. Formal charge sheet had been issued by the notified court on 15.07.2004. The cases are continuing, and the applicant had attained the age of superannuation by 31.12.2005.
11. It could be seen that files pertaining to the applicant had been made available to the Bench and the factual position as available, referred to above are recapitulated, courtesy to the details given by the Vice Chairman in his order. They appear to be undisputed.
12. Relying on the norms that were in force, the Chairman by his order, as briefly referred to earlier, had come to a finding that serious allegations were there as against the applicant, and unless he was cleared, it would not have been possible for him to press for promotion although he had been cleared by the DPC.
13. I may at this point note that there was no error in adopting the sealed cover procedure, as it is evident from record that from 03.04.2003 upto 09.09.2003 the applicant was under deemed suspension as he was in the police custody. The records reveal that Screening Committee had met on 21.08.2003 and in respect of the applicant, their decision had been put in a sealed cover on 21.08.2003. The applicant has attempted to suggest that the Committee had met only during December, 2003 but that does not appear to be the factual position. We can even note that the sealed cover in respect of the applicant had been opened on 09.09.2003.
14. There was, therefore, no irregularity in adopting sealed cover proceedings. Evidently, there was no closed mind, in respect of the applicant’s credentials as there was attempt made to follow the mandate of the Office Memorandum, which required consideration of claims of persons who were so situated. The Vice Chairman has, in Paragraph 10 of the order, found that a proposal was put by the Under Secretary, on 01.04.2004 for the approval of the competent authority stating that ‘As per the vigilance report in respect of Shri S.C. Sharma, IAS, furnished by the DOP&T, the case of Shri Sharma does not fall in any of the three categories mentioned above and as such he is entitled to be promoted to the Secretaries Grade in the Cadre’. He also found that the file but had been returned at the level of Joint Secretary on the ground of cadre review. He has, however, opined that the question of cadre review was not relevant and does not form part of the guidelines, particularly when there was a clear vacancy to consider a person for promotion in the cadre. This appears to have been the starting point of the difference in the opinion.
15. It has been observed that the Joint Secretary was not competent authority to return the file, on the basis of cadre review steps. It has been noted that in respect of four 1971-batch officers, appointment had been approved on 10.08.2004 and orders were issued on 20.09.2004. Therefore, it is concluded that the plea of cadre review was an empty argument and deliberately, the opportunity of the applicant for giving him promotion stands spoiled. In Paragraph 15, it is highlighted that there was no decision by the Government to withhold promotion to the Secretaries Grade in the cadre till the cadre review is completed. It was only at the level of Joint Secretary that the file had been returned. According to the Vice Chairman, the Government has not explained as to what has happened after 27.04.2004. A junior of the applicant had been in a comparable position with Secretaries Grade before finalization of the cadre review. The gist of the decision is that when there were existence of vacancies, and when an officer is found suitable for promotion, he has a right to be promoted in the grade on the terms of the instructions issued by the DOP&T. It is suggested that otherwise it will be a futile exercise to prepare a panel in advance for the anticipated vacancies.
16. Thus, the existence of the vacancies and the steps taken for finalizing promotions of four officers even before the cadre review was completed, are projected as reasons for holding that the applicant was entitled to promotion to the Secretary’s grade from March, 2004 and the denial of promotion was, therefore, held as illegal and unjustified.
17. It is evident that after the sealed cover was opened in September, 2003, steps were taken to examine the possibilities of promotion of eligible officers to the vacancies, which were existing. In view of the DOP&T instructions for a vigilance clearance, unless this is obtained, a promotion might not have been possible to be made straightaway. Although, the vigilance reports indicate that the parameters of the O.M. which was brought in line with the judgment of Janakiraman (1991 (4) SCC 109) did not operate to foreclose the rights of promotion, the files were returned in view of the circumstances that a cadre restructuring was in progress. Vice Chairman, of course, has adverted to the office order that promotions could be made on provisional basis for a maximum period of one year or till the time the restructuring was completed, whichever was earlier and is of the view that the claim of the applicant had been deliberately put in cold storage. However, that does not appear to be a safe foundation for resting the decision.
18. The earliest promotions, as could be seen in respect of 1971 batch, had come only after a formal charge sheet had been issued in the pending criminal case. The applicant challenges an order passed on 6.10.2004. It may not be possible to put the clock back on principles of might and ought, as the question relates to conferment of promotion. For instance, the discretion exercised by the Joint Secretary or his jurisdictional powers cannot be the base for a decision especially when we are exercising discretionary jurisdiction. His rights could have been stated as transgressed only if his juniors had been promoted before his disability commenced. In spite of the efforts made by the senior counsel, it has not been possible for him to show that any of the juniors had been promoted on a date prior to 01.07.2004 when the total disability had sealed his fate. Whether or not the promotional orders had come before the restructuring orders had been gazetted, is irrelevant, as malafides have not been alleged or established as existing in the mind of any of the decision makers. The view of the Vice Chairman, according to me was too technical, and I find no way to agree therewith.
19. We have also to note that it was a case of deemed suspension, which had jeopardized the applicant’s rights. He was facing criminal trial, about serious allegations made against him under the Prevention of Corruption Act. By dodging or sidelining the instructions, perhaps it may have been possible for him to claim for promotion. Technically also he could have been promoted but that is not equal to a position that respondents were obliged to confer on him promotions when vigilance cases were staring at him. The DOPT instructions have to be understood in the background in which they require to be applied. The clearance from vigilance angle cannot be ignored. As pointed out by the Chairman in the order, the resultant position could not be equated to imposition of a punishment, as he, by his conduct, had disabled himself from earning a promotion. The action of the respondents could not be considered as malicious or arbitrary or against larger public interest.
20. A sublime perspective, of course, requires to be employed while dealing with claims of promotions of an officer, who is facing serious allegations, and it is not the function of the court to uphold technical arguments so as to support the cause of such an officer, who, of course, might be attempting to swim to the shores of safety single-mindedly and nothing else in his concern.
21. The Original Application is, therefore, dismissed without costs.