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PETITIONER: STATE OF M.P.

       Vs.

RESPONDENT: J.S. BANSAL & ANR.

DATE OF JUDGMENT:       09/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 9TH DAY OF FEBRUARY, 1998 Present:              Hon’ble Mr. Justice S. Saghir Ahmad              Hon’ble Mr. Justice G.B. Pattanaik Dr. A.M. Singhvi, Sr. adv., Mrs. Madhur Dadlani, Satish K. Agnihotri, Advs. with him for the appellant G.L. Sanghi,  Sr. Adv.,  S.K. Gambhir,  Vivek Gambhir, Advs. with him for the Respondent Sakesh Kumar,  K.L.Hathi, Advs.  for M/s. Hathi & Co., Advs. for the Respondent No.2                       J U D G M E N T The following Judgment of the Court was delivered: S. SAGHIR AHMAD, J.      Respondent  No.1   while  working   as   superintending Engineer (E&M)  in the  public Health Engineering Department was issued  a charge-sheet  on 16.11.94 which was challenged by him in O.A.No. 1219/94 in the Gwalior Bench of the Madhya Pradesh Administrative  Tribunal (for short, ‘the Tribunal’) on the  ground that  besides containing stale charges it was issued  with  the  male  fide  intention  to  forestall  the consideration of  his name  for inclusion  in the  panel  of candidates for  promotion to  the  post  of  chief  Engineer (E&M). The claim petition was allowed by the Tribunal by its order dated  17.5.95 and  the S.L.P.  filed by  the state of Madhya Pradesh,  in this  Court, was  dismissed on  16.10.95 with the following order:-      "Delay condoned.      While we  agree that  some  of  the      observations made  by the  Tribunal      are  sweeping   and  not   entirely      correct in  law, we  are  satisfied      that the  conclusion arrived  at by      the Tribunal is correct. We are not      inclined  to   interfere   in   the      matter, particularly in view of the      fact  that   though  the  Lokayukta      report was  received in  1986,  the      charges were  served only  in 1994,      i.e. after  about eight  years.  In      the meantime,  the  respondent  had

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    also been  promoted in  1987. It is      in  view   of   these   facts   and      circumstances  that   we  are   not      inclined     to  interfere  in  the      matter. The  special Leave Petition      is dismissed." 2.   Respondent  No.   1,  thereafter,  filed  another  case (O.A.No. 876/95) before the Tribunal for the relief that the State Government  may be  directed to convene the meeting of the Departmental  Promotion Committee  for  considering  his name for  promotion to  the post  of Chief Engineer and that the State  Government may  be restrained  from starting  any fresh departmental  proceeding. This  O.A. was  disposed  of finally by  the Tribunal  by its order dated 8.12.95 and the direction was issued to the appellant to hold the meeting of the Departmental  Promotion Committee  within six weeks. The further relief  that no  fresh departmental  proceedings  be initiated against  him was  refused by the Tribunal. On 31st of January,  1996  state  Government  filed  an  application before the  Tribunal for extension of time for convening the meeting of Departmental Promotion Committee but the Tribunal instead of  granting extension, directed, by its order dated 2.2.96, to produce the original records before it so that it may be found out as to why the convening of the Departmental Promotion committee  was being delayed. While the matter was pending before the Tribunal, a fresh charge-sheet was issued to respondent  No. 1  and 2  others were kept in the "Sealed Cover". This  Procedure  was  adopted  by  the  Departmental Promotion  Committee   because  of   the  pendency   of  the departmental proceedings  against  Respondent  No.1  on  the basis of the charge-sheet issued to him on 5.2.96. 3.   The  Tribunal   which  already   had  before   it   the application of  the State  Government for  extension of  the time  (M.A.32/96),   for  convening   the  meeting   of  the Departmental Promotion Committee, passed an order on 14.2.96 restraining the  State Government  from promoting any person junior to  respondent No.1  to the post of chief Engineer. A further order  for status  quo was passed by the Tribunal on 27.2.96 4.   Respondent No.1  in the meantime, filed anther O.A. No. 237/96 before  the Tribunal  on 11.3.96 with the prayer that the State  Government may  be directed  to open  the "Sealed Cover" containing  the recommendations  of the  Departmental Promotion committee.  This O.A. was clubbed with M.A. 32/96. The orders  of the  Tribunal, passed  on 14.2.96 and 27.2.96 were challenged  by the  State Government in a Writ Petition No. 1420  of 1996  before the  High Court  of Madhya Pradesh which by its order dated 15.4.96 stayed the operation of the aforesaid order as also further proceedings in M.A.32/96. 5.   O.A. No.  237/96 was  taken up  by the  Tribunal and it disposed of  the application  of Respondent No.1 for interim relief by  its order  dater 21/4/96  and directed  the State Government to  open the  "Sealed Cover" and to implement the recommendations contained therein. 6.   In the  meantime, contempt  proceedings were  drawn  up against  the  officers  of  the  State  Government  for  the implementing the  order of  the Tribunal  that  the  "Sealed Cover" be opened and the recommendations of the Departmental Promotion Committee,  held on  12.2.96, may  be implemented. Consequently, the  "Sealed Cover" was opened which contained the recommendation  of departmental  Promotion Committee  as under:-      "Committee  has   found  Shri   J.S      Bansal,   superintending   Engineer      (E&M) fit for promotion to the post

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    of  Chief   Engineer  (E&M)  as  he      fulfills the  prescribed criterion.      Promotion to  be done only on being      exonerated    from     Departmental      Enquiry/Disciplinary Proceedings." 7.   Before us,  it is  the Tribunal’s  order, dated 21.4.96 which is  under  challenge.  As  pointed  out  earlier,  the Tribunal, by its order, had directed that the "Sealed Cover" be opened and the case of the respondent No. 1 for promotion to the post of Chief Engineer may be further processed. 8.   In passing this order, the Tribunal has relied upon the decision of  this Court  in B.C.  Chaturvedi  Vs.  Union  of India, AIR  1996 SC  484 = (1995) 6 SCC 749, in which it has been, inter alia, observed as number:      "8.  It   is  true   that   pending      disciplinary    proceeding,     the      appellant was promoted as Assistant      Commissioner  of  Income  Tax.  Two      courses in  this behalf are open to      the  competent   authority,   viz.,      sealed  cover  procedure  which  is      usually  followed,   or  promotion,      subject to  the result  of  pending      disciplinary action. Obviously, the      appropriate authority  adopted  the      latter course  and gave the benefit      of promotion to the appellant. Such      an action  would not  stand  as  an      impediment    to    take    pending      disciplinary action  to its logical      conclusion.   The    advantage   of      promotion gained  by the delinquent      officer would  be no  impediment to      take appropriate  decision  and  to      pass an  order consistent  with the      finding of proved misconduct." 9.   It may  be pointed  out at the outset that the Tribunal was not justified in placing reliance upon this decision for passing  the   impugned  order  of  interim  relief  as  the delinquent officer  (B.C. Chaturvedi), against whom a C.B.I. enquiry was held on the allegation that he was in possession of assets  disproportionate to  his known  income,  was  not prosecuted under  Prevention of Corruption Act as the C.B.I. was of  the opinion  that if was not in possession of strong proof which  would ultimately  result in his conviction and, therefore, recommended  that  Mr.  B.C.  Chaturvedi  may  be departmentally tried. A charge-sheet was, thereafter, issued to Mr.  B.C. Chaturvedi and regular departmental enquiry was held in which misconduct on his part was found proved and he was dismissed  from service.  The Tribunal,  before whom the order  of   dismissal  was   challenged,  reappreciated  the evidence  and   upheld  the   findings   recorded   in   the departmental  proceedings   but  converted   the  order   of dismissal into  one of  compulsory  retirement.  During  the pendency of the departmental proceedings, Mr. Chaturvedi was promoted as  Assistant Commissioner  of Income Tax. Thus, in that case,  it was not the mere question of granting interim relief  of   "promotion  subject   to  the   result  of  the departmental proceedings" but the order of dismissal and its subsequent  conversion   into  the   order   of   compulsory retirement which  was under  the consideration of the Court. The grant  of interim  relief, during  the pendency  of  the departmental enquiry, was not directly in issue in that case and the  observations were  in the  nature  of  mere  obiter dicta.

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10.  The   question  whether   recourse  to  "Sealed  Cover" procedure can  be  adopted  in  a  case  where  departmental proceedings are  pending on the date on which the delinquent officer is  considered for  promotion and  whether  the  The Tribunal could  pass an  interim order that the employee may be  considered   and  promoted   to  the  next  higher  post irrespective of  the departmental  proceedings, contemplated or pending,  was considered  by this court in Union of India Vs. Tejinder  Singh, (1991)  4 SCC  129,  in  which  it  was observed as under:-      "4.  The   appeal  is   accordingly      allowed  and   the  impugned  order      passed by the central Administrtive      Tribunal  directing  the  Union  of      India,  Ministry   of  Finance   of      consider   the    respondent    for      promotion   to    the    post    of      commissioner of  Income tax,  level      II, is  set  aside,  While  setting      aside the  impugned  order  of  the      Tribunal we  would like  to  record      that   the    Tribunal    had    no      jurisdiction whatever while dealing      with  a   petition  to   quash  the      contemplated  departmental  enquiry      against the  respondent, to make an      interim order  of this  nature.  We      are also  not satisfied  as to  the      correctness of  the view  expressed      by the Tribunal that a contemplated      departmental inquiry or pendency of      a departmental proceeding cannot be      a    ground     for     withholding      consideration for  promotion or the      promotion itself.  We are not aware      of any rule or principle to warrant      such a view. As at present advised,      we do  not subscribe  to  the  view      expressed by the Tribunal." 11.  After   this    decision,   the    office    Memorandum No.22011/1/79 Estt. (A) dated January 30, 1982 issued by the Government of  India (Department  of Personnel and Training) was  reconsidered   and  in   its  place  office  Memorandum No.22011/2/86 Estt.(A) dated January 12, 1988 was issued. 12.  Both these  memoranda were  considered by this Court in Union of  India &  Ors. Vs.  K.V. Jankiraman & Ors. (1991) 4 SCC 109  in which it was laid down that consideration of and employee  for   promotion,  selection   grade,  crossing  of efficiency bar  or higher  scale of  pay cannot  be withheld merely on  the ground of pendency of any preliminary enquiry on the  ground of  pendency of  any preliminary  enquiry  of criminal investigation  but the "Sealed Cover Procedure" can be resorted  to if  a charge-sheet  has been  issued or  the departmental proceedings  are pending  or the  employee  has been placed  under suspension. It was also laid down that if on a  consideration of  the name of the delinquent employee, the recommendations  of the Departmental Promotion Committee were kept  in a "Sealed Cover" on account of the pendency of departmental proceedings, the "Sealed Cover" could be opened only in  the case  of complete  exoneration of  the employee from all  charges and  notional promotion  could be given to him from the date on which his juniors were promoted. But if any penalty  is imposed  on  the  employee  in  disciplinary proceedings, the  "Sealed Cover" is not required to be acted upon and  his case  for promotion is to be considered in the

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usual  manner by the next Departmental Promotion Committee. 13.  Undoubtedly,  an   employee  has   a  right   of  being considered for promotion but he cannot claim promotion as of right. Right  to be  considered for  promotion is  obviously different and  distinct from  right of  promotion.  Even  if disciplinary proceedings  are initiated  against an employee and those proceedings are pending on the date on which names of other  employees are considered for promotion to the next higher post  along with  other employees. His name cannot be omitted from consideration merely because of the pendency of the departmental  proceedings. An  employee cannot be denied this right  at the  interlocutory stage  of the departmental proceedings as  he is  still to be found guilty on the basis of the  evidence which  might be produced against him during those proceedings.  Till the  charges are  established,  his right to be considered cannot be defeated as he is not under the cloud  of having been found guilty but is only suspected to be  guilty. Mere suspicion is not a substitute for proof. Consideration  for   promotion  along  with  other  eligible candidates is  done so  as to give effect to the Fundamental Right available  even to a delinquent employee under Article 14 and  16 of  the constitution. Once the name is considered for  promotion,  the  recommendations  of  the  Departmental Promotion Committee  are required  to be  kept in  a "Sealed Cover" obviously  for the  reason that  if the  employee  is ultimately found  to be  not guilty  and the charges set out against him  are found  as  "not  established",  he  may  be promoted immediately to the next higher post. 14.  In view  of the law laid down by this Court in Tejinder Singh’s case  and Jankiraman’s  case (supra)  and in view of the service  Rule/Executive instruction  relating to "Sealed Cover Procedure",  Departmental Promotion Committee, in such a situation,  would be  well within  its right  to place its recommendations in  the "Sealed  Cover" so  that the "Sealed Cover" may  be opened  on the conclusion of the Departmental proceedings and  recommendations contained  therein  may  be given effect  to without delay. An interim order, therefore, that the "Sealed Cover" be opened and the recommendations of the Departmental  Promotion Committee  for the  promotion of the delinquent  officer may  be given  effect to even during the pendency  of the  departmental proceedings,.  subject to its final result, is not usually or always or as a matter of course, granted.  This rule  can be  departed from  only  in exceptional cases  depending upon  the  circumstances  of  a particular case  having regard  to the  fact that integrity, honesty and  sincerity are  the hall-mark of public services under  the  Union  of  the  State  and  that  efficiency  of administration depend   upon  the  effort  made  by  persons holding public  offices to  serve the country and the Nation with devotion  and an attitude of sacrifice without any iota inkling of "self service". 15.  Learned counsel  for the respondent has contended  that when the charge-sheet was first issued to the respondent, it was quashed  by the  Tribunal on  the  ground  of  delay  in initiating the  departmental   proceedings for charges which were very  old and  stale. The  decision of the Tribunal was upheld   by this  Court as  the S.L.P  filed by the State of Madhya Pradesh was dismissed. The second charge-sheet on the basis of  which the  present departmental  proceedings  have been initiated  also contains  stale charges and, therefore, the said  charge-sheet would  also be  ultimately quashed by the Tribunal  particularly when the departmental proceedings have  been   initiated  with  the  mala  fide  intention  of forestalling  the promotion of the respondent to the post of Chief Engineer.  It is  contended that  the charge-sheet was

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issued just  one day  before the meeting of the Departmental Promotion Committee  which makes  it  obvious  that  it  was deliberately issued so that at the time of the consideration of respondent’s  name for promotion, the recommendations may be placed  in the  "Sealed Cover"  and his  juniors  may  be promoted. 16.  It is  true that the charge-sheet was issued on 5.2.96, i.e., a  day before the Departmental Promotion Committee was to meet.  The Departmental Promotion committee met on 6.2.96 but actually  considered the  name of  the respondent in its meeting   held on  12.2.96.  Whether  the  charge-sheet  was deliberately issued  to prompt  the  Departmental  Promotion Committee to  take recourse  to the "Sealed Cover Procedure" is a  question of  fact which  has yet  to be decided by the Tribunal on  merits on the basis of the evidence which might be led  by the parties. That being so. it can hardly be made a basis for interim relief. 17.  As to  the contention  of the  learned counsel  for the respondent that  the charges in the present charge-sheet are also stale  and this  charge-sheet  is  also  likely  to  be ultimately quashed  by the  Tribunal, it  would  suffice  to point out  that the  Tribunal  itself  has,  in  its  order, indicated that  out of  10 charges,  the  first  8  charges, relate to  the period 1979 to 1987 but charges No. 10 and 11 relate to  1991 and  1992. These charges, namely, charge No. 10 and  11 which  relate to the year 1991 and 1992 cannot be said to be stale. 18.  Learned  counsel,   then,  placed   reliance  upon  the decision of  this Court  in  State  of  Punjab  &  Ors.  Vs. Chamanlal Goyal,  (1995) 2  SCC 570,  and contended  that in view of  the fact  that the  "Sealed Cover" has already been opened and  it has  been found  that the respondent has been recommended to  be promoted  to the  post of Chief Engineer, and interim  order can  be legitimately passed that he shall be promoted  to the post of Chief Engineer, an interim order can be  legitimately passed that he shall be promoted to the post of  Chief Engineer  subject to  the result  of  enquiry proceedings pending  against him.  This  decision  does  not notice  the  Three  judge  decision  in  Jankiraman’s  case. Moreover, it  was held  that the  order of the High Court by which the  charge-sheet as  also  the  order  appointing  an Enquiry Officer  were quashed,  was  not  warranted  by  the circumstances of the case and that it was in the interest of justice as  also in  the interest of administration that the departmental enquiry, which had already proceeded to a large extent, be allowed to be completed. This court also directed that the delinquent employee may be considered forthwith for promotion without  reference  to  and  without  taking  into consideration the  charges  or  the  pendency  of  the  said enquiry and  if he was found fit for promotion, he should be promoted immediately. The Court hastened to add:-      "This  direction  is  made  in  the      particular facts  and circumstances      of the  case though  we  are  aware      that   the   rules   and   practice      normally followed in such cases may      be different." 19.  This order was passed on the conscious consideration of the fact  that the charge-sheet and departmental proceedings had been quashed by the High Court and, therefore, the Court merely  balanced   the  equities   by  directing   that  the petitioner, in that case, may be considered and promoted, if found fit. 20.  It was  further observed  that the  promotion  so  made during the  pendency of  the enquiry  shall be,  subject  to

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review after  the conclusion  of the enquiry in the large of the findings  recorded in the departmental proceedings. This decision, therefore, cannot be pressed in aid in this case. 21.  Dr. A.M.  Singhvi, learned  Senior Counsel appearing on behalf of  the State of Madhya Pradesh has contended that in view of  the law  laid down  by this  Court in  Jankiraman’s case, the  judgment passed  by Tribunal  cannot be sustained particularly as the charges against the respondent relate to financial irregularities,  two of  which are  recent in time and cannot  be said  to be  stale. It is also contended that the allegation  of malice  made against the State Government is still  at the  initial stage  of mere  assertion which is unsubstantiated and  cannot be treated even as laying down a foundation  for   any  interim   relief.  Dr.  Singhvi  also contended that  part of  the evidence on behalf of the State has already  been recorded  by the  enquiry officer  and the enquiry proceedings would be completed within the time frame fixed by  this Court  provided the respondent  cooperates in those proceedings. 22.  Having   regard to  the facts  and circumstances of the instant case,  we are  firmly of  the view that the Tribunal was not  justified in  passing the  impugned order  that the "Sealed Cover"  be opened  and the  recommendations  of  the Departmental Promotion  committee be  given effect  to.  The "Sealed  Cover   Procedure"  was   rightly  adopted  by  the Departmental Promotion  Committee and there was no reason to interfere with that procedure. 23.  It is pointed out that the post of Chief Engineer (E&M) has already  been filled up and respondent No. 2 has already been  promoted.   It  is,   however,  stated  on  behalf  of respondent No.  1 that  a post  of chief  Engineer(E&M),  on which mr.  K.K. Murab was promoted, has fallen vacant as Mr. Murab has  retired from  service on  attaining  the  age  of superannuation in  November, 1997  and this  post  is  still lying vacant.  it is  contended that  on this  vacant  post, respondent No.1 can be promoted subject to the result of the departmental enquiry. 24.  Having  given   our  anxious   consideration   to   the respective  contentions,  we  think  that  the  interest  of justice would  be best  served by directing that if the post of Chief  Engineer (E&M),  held by  Mr. K.K.Murab  has since fallen vacant,  as  pointed  out  by  the  counsel  for  the respondent, and  if the said post is still lying vacant, and no promotion has so far been made on that post, it shall not be filled  up by  the State  Government and  shall  be  kept vacant so  that if  and when  respondent No.1  is ultimately found to  be not  guilty in departmental proceedings, he may be promoted  on that  post without  delay particularly as he has  already   been  found  by  the  Departmental  Promotion Committee to  be fit  for promotion. We also direct that the departmental proceedings,  pending against  respondent No 1, shall be  completed, provided  respondent No,  1 cooperates. within a  period of four months. the post of chief Engineer, referred to  above which has fallen vacant on the retirement of mr. K.K.Murab, shall not be filled up for four months, if the same has not already been filled up in the meantime. 25.  The appeal is disposed of in the manner indicated above without any order as to costs.