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PETITIONER: UNION OF INDIA AND ANR.

       Vs.

RESPONDENT: R.S.  SHARMA

DATE OF JUDGMENT:       18/04/2000

BENCH: D.P.Mohapatro, K.T.Thomas, S.N.Variava

JUDGMENT:

     THOMAS, J.

     The  grievance  of  the   respondent    a  Divisional Engineer  in the Telecom Department - is that his  promotion to  the  next  tier in the cadre (senior time scale  in  the Indian  Telecommunication  Service  Group   A)  has   been temporarily sealed on account of erroneously adhering to the Sealed   Cover  Procedure.    The  Central  Administrative Tribunal   (for  short  the   Tribunal)  before  which  he approached  for  redressal of his grievance has  upheld  his contentions  and directed the appellants to open the  sealed cover  and  give effect to the recommendations made  by  the Departmental  Promotion Committee (DPC).  Union of India and the  Chief General Manager of Mahanagar Telephone Nigam Ltd. have  filed  these appeals by special leave challenging  the aforesaid direction issued by the Tribunal.

     The  background  of  passing  the said  order  is  the following:    Respondent  was  appointed   in  the   Telecom Department  during  1986.   Hardly two years passed  he  got himself  delved  in  the vortex of  serious  allegations  of financial  misdemeanors.  One of the allegations is that  he purchased  very substandard materials for the Department  at very  high  prices.  An FIR was registered and  the  Central Bureau  of  Investigation  (for  short CBI)  took  up  the investigation.   On  10.3.1988, he was suspended but  within six  months  the suspension order was revoked.   Nonetheless the  CBI  continued  with investigation  and  on  completion thereof  they  applied  to  the   Government  of  India  for according sanction to prosecute the respondent.

     In the meanwhile the DPC considered the cases of other persons  in  the Department for promotion, but deferred  the case  of  the  respondent  on account  of  the  pendency  of investigation  of  the  said allegations against  him.   The respondent  then  moved the Tribunal and on 30.11.1990,  the Tribunal  passed  an interim direction that the  DPC  should consider  the  case of the respondent for promotion  in  the event  of  considering  the  claims of any  of  his  juniors attached to the same Department.

     Pursuant  thereto  the DPC considered the case of  the respondent on 3.4.1991 and adopted a decision.  However, the DPC  did not communicate the decision to any one and instead it  put  the recommendations in sealed cover as enjoined  by

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the  conditions  specified in the Sealed  Cover  Procedure adopted  by  the Government of India.  (vide  Government  of India,    Deptt.    Of   Per.     &   Trg.,   Office    Memo No.22011/2/86-Estt.(A) dated the 12th January, 1988).

     At  this stage, it is relevant to extract paragraph  2 of the said Office Memorandum.  It reads thus:

     Cases  where Sealed Cover Procedure applicable:- At the  time  of  consideration  of  the  cases  of  Government servants  for  promotion, details of Government servants  in the  consideration  zone  for promotion  falling  under  the following  categories should be specifically brought to  the notice  of  the  Departmental   Promotion  Committee:    (i) Government  servants  under   suspension;   (ii)  Government servants  in  respect of whom disciplinary  proceedings  are pending   or  a  decision  has   been  taken   to   initiate disciplinary  proceedings.   (iii)  Government  servants  in respect of whom prosecution for a criminal charge is pending or  sanction  for prosecution has been issued or a  decision has  been  taken to accord sanction for  prosecution;   (iv) Government servants against whom an investigation on serious allegations   of  corruption,  bribery   or  similar   grave misconduct  is in progress either by the CBI or any  agency, departmental or otherwise.

     It is not disputed before us that on 3.4.1991 when DPC decided  to put the recommendations concerning respondent in the  sealed  cover, investigation into the case involved  in the  aforesaid  FIR  was pending.  Hence  the  Sealed  Cover Procedure was adopted as his case fell within the purview of clause  (iv)  of  the aforesaid second  paragraph.   But  on 31.7.1991  a new development took place.  As per Office Memo No.22011/1/91-Estt.(A) the restriction imposed as per clause (iv)  was  deleted from the second paragraph of the  Sealed Cover  Procedure.  However, three counts of  clarifications have  been made by the Government of India through the  same O.M.  They are extracted below:

     It  is further clarified that:- (i) All cases kept in sealed  cover on date of this O.M.  on account of conditions obtainable  in para 2(iv) of the O.M.  dated 12.1.1988  will be  opened.   If  the  official   had  been  found  fit  and recommended by DPC, he will be notionally promoted, from the date his immediate junior had been promoted.  The pay of the higher  post  would  of  course,   be  admissible  only   on assumption  of  actual  charge in view of provisions  of  FR 17(1).   (Since only officiating arrangements could be  made against  the vacancies available because of cases of  senior officials  being  in  sealed  cover, there may  not  be  any difficulty  in terminating some officiating arrangements  if necessary  and giving promotion in such cases).  (ii) If any case  is  in a sealed cover on account of any of  the  other conditions  mentioned  in  para 2(I) to 2(iii) of  the  O.M. dated  12.1.88,  the case will continue to be in the  sealed cover.   (iii)  On  opening of the sealed cover  because  of deletion  of para 2(iv) if an officer is found to have  been recommended  as unfit by the DPC no further action would be necessary.

     Some  further  developments  which took place  in  the meanwhile  are also relevant.  CBI completed and submitted a report to the Government on 7.5.1991 and sought for sanction to be accorded to launch prosecution proceedings against the respondent.   On  9.7.1991 the Minister of  State  concerned

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gave  his approval to the respondent and referred the matter for  the  advice of the Central Vigilance Commission  (CVC). When  the advice was given by the CVC the Minister for State gave  further  approval  on 10.9.91 for adopting  follow  up actions  on  the  report.  However,  formal  order  granting sanction  to  prosecute  the  respondent  was  made  by  the President only on 30.9.1991.

     Normally  the case of respondent should have succeeded if the situation which happened on 31.7.1991 was confined to deletion of clause (iv) from second paragraph of the Sealed Cover  Procedure.   But when the same O.M.   made  specific mention  of a clarification that the case will continue  to be in the sealed cover on account of existence of any one of the  remaining three conditions specified in clauses (I)  to (iii)  of  the first O.M. the matter has to  be  considered from those angles also.

     Shri  Mukul  Rohtagi,   learned  Additional  Solicitor General  contended  that as the Minister concerned  accorded approval  for granting sanction to prosecute the  respondent as  early  as 9.7.1991, the recommendations of the DPC  must remain  under  sealed  cover  by virtue  of  the  conditions specified  in  clause (iii) of the second paragraph  of  the Sealed  Cover  Procedure (supra), because in such  an  event deletion  of  clause  (iv)  on 31.7.1991 by  itself  had  no consequence.

     Shri  Anil  Kumar  Sharma,  learned  counsel  for  the respondent  contended  that  appellants  are  debarred  from adopting  such a contention as the Department stated in  the affidavit  filed  in this Court that the Minister had  given approval  only  on 10.9.1991 and by then clause (iv) in  the aforesaid  second paragraph of the Sealed Cover  Procedure was already deleted.

     Without  conceding  to the above position, Shri  Mukul Rohtagi,   Additional   Solicitor    General,   adopted   an alternative  contention  based on Paragraph 7 of the  Sealed Cover Procedure which reads thus:

     Sealed cover applicable to officer coming under cloud before  promotion:- A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose  case  any  of the circumstances mentioned in  para  2 above  arise  after  the  recommendations  of  the  DPC  are received  but  before  he  is  actually  promoted,  will  be considered  as if his case had been placed in a sealed cover by the DPC.  He shall not be promoted until he is completely exonerated  of  the charges against him and  the  provisions contained  in  this  O.M.  will be applicable  in  his  case also.

     The  conditions  necessary to invoke the  said  clause are:   (1) Recommendations of the DPC should have been  made for  promoting  the  Government  servant.   (2)  After  such recommendations  and before he is actually promoted any, one of  the circumstances in clause (ii) of the second paragraph (supra) should have arisen.

     Two  factual  aspects  are   admitted.   One  is  that respondent was not actually promoted even now.  The other is that  formal sanction has been accorded to prosecute him  in the  meanwhile.   If that be so, paragraph 7 of  the  Sealed Cover Procedure would entirely apply and the recommendations

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made  by the DPC in respect of the respondent have to remain in  the  sealed cover until he is completely exonerated  of the charges against him.

     Shri  Anil Kumar Sharma, learned counsel, adopted  the contention  that  the  situation would not  have  arisen  as envisaged  in  paragraph 7 of the Sealed Cover Procedure  if the  appellants had complied with the conditions  stipulated in  the Office Memorandum dated 31.7.1991 either on that day itself  or  at  least  soon   thereafter  by  promoting  the respondent.   Learned counsel contended that the  Department had  willfully  and deliberately avoided to comply with  the said  Office  Memo  dated 31.7.1979,  and  hence  appellants should  not  be  permitted to take advantage  of  their  own wrong.

     We  are  not impressed by the said arguments  for  two reasons.  One is that, what the Department did not do is not the  yardstick indicated in paragraph 7 of the Sealed  Cover Procedure, what is mentioned therein is that it cannot apply to  the Government servant who is not actually promoted by that  time.   Second  is  that, the stand taken  up  by  the Department  is  that in spite of deletion of clause (iv)  of the  second  paragraph, the recommendations of the DPC  must remain  in  the  sealed cover on account of  the  conditions specified in clause (iii) of the said paragraph by virtue of the  operation  of paragraph 7 thereof.  We cannot say  that the  said stand was incorrect and, therefore, we are  unable to  blame  the Department for not opening the  sealed  cover immediately after 31.7.1991.

     Learned  counsel for the respondent made an  endeavour to  contend that in the light of the decision of this  Court in  Union of India vs.  K.V.  Janakiraman {1991 (4) SCC 109} the  Sealed  Cover Procedure can be resorted to  only  after Charge  Memo is received or a charge-sheet is filed and that unless  such an event had happened at the relevant time  the Government employee cannot be denied of his promotion, if he is otherwise entitled to it.  Learned counsel also submitted that  Janakiraman  was since followed in Union of India  vs. Dr.   Sudha Salhan {1998(3) SCC};  Bank of India vs.  Degala Suryanarayana  {1999(5)  SCC  762}.  The clauses  of  second paragraph  of  the  Sealed  Cover  Procedure  considered  in Janakiraman  were not those involved in the present case and hence  that  decision is of no avail to the respondent.   In the  other two decisions the facts warranted application  of the  ratio  contained in Janakiraman.  The added  factor  in these  two  cases was that the public servant concerned  had been  exonerated  of  the  charges framed  by  the  criminal courts.   In the present case the respondent is still facing the  trial for serious offences, and hence the situation  is different.

     We  may also point out, in this context, that in Delhi Development  Authority  vs.  H.C.  Khurana {JT 1993(2)  695} and  Union of India vs.  Kewal Kumar {JT 1993 (2) 705}  this Court found that the ratio in Janakiraman is applicable only to  the  situations similar to the cases discussed  therein, and  hence the Sealed Cover Procedure resorted to by the DPC in those two cases was upheld by this Court.

     In  our opinion the Tribunal has erred in  overlooking paragraph  7  of  the Sealed Cover Procedure  (supra)  and hence  the  direction  issued  by it  as  per  the  impugned judgment  cannot  be sustained.  We, therefore, allow  these

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appeals and set aside the said direction.