{"id":217666,"date":"1998-05-01T00:00:00","date_gmt":"1998-04-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-p-sharma-vs-union-of-india-on-1-may-1998"},"modified":"2016-02-21T12:57:52","modified_gmt":"2016-02-21T07:27:52","slug":"m-p-sharma-vs-union-of-india-on-1-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-p-sharma-vs-union-of-india-on-1-may-1998","title":{"rendered":"M.P. Sharma vs Union Of India on 1 May, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
M.P. Sharma vs Union Of India on 1 May, 1998<\/div>\n
Equivalent citations: 1998 IVAD Delhi 532, 74 (1998) DLT 99, 1998 (46) DRJ 73<\/div>\n
Author: . M Sharma<\/div>\n
Bench: . M Sharma<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Dr.. M.K. Sharma, J. <\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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).\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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).\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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:\n<\/p>\n
       “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.”\n<\/p>\n
 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).\n<\/p>\n
  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.\n<\/p>\n
 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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M.P. Sharma vs Union Of India on 1 May, 1998 Equivalent citations: 1998 IVAD Delhi 532, 74 (1998) DLT 99, 1998 (46) DRJ 73 Author: . M Sharma Bench: . M Sharma ORDER Dr.. M.K. Sharma, J. 1. In the present writ petition the petitioner seeks for a writ of mandamus commanding […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-217666","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM.P. 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