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CASE NO.: Appeal (civil)  3691 of 2005

PETITIONER: Union of India & Ors

RESPONDENT: Sangram Keshari Nayak

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :                  Interpretation of a purported circular letter dated 21.01.1993 falls for  our consideration in this appeal which arises out of a judgment and order  dated 31.01.2005 passed by the High Court of Orissa in Writ Petition No. 50  of 2004.

       Before embarking upon the said question, we may, however, notice  the admitted fact of the matter.

       Respondent was recruited to Indian Railway Traffic Services on or  about 1.02.1982.  He was promoted to the post of Junior Administrative  Grade.  He was also placed in the selection grade on 1.07.1994.  The post of  Senior Administrative Grade fell vacant.  Respondent was eligible to be  considered therefor.  A Departmental Promotion Committee (DPC) was  convened for preparation of a panel for promotion to the said post.   Respondent’s name was also included therein.  Inter alia on the premise that  a vigilance case was pending against him, sealed cover procedure was  adopted by the DPC purported to be in terms of the circular in question  providing for the procedure and guidelines to be followed in respect of the  officers who are to be promoted from Grade B to Grade A and of Railway  officers against whom disciplinary / court proceedings were pending.

       Paragraph 6 of the said Circular, which is relevant for our purpose  reads, thus:

"6. 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 Departmental promotion  Committee.  He shall not be promoted until the  conclusion of disciplinary case/ criminal  proceedings and the provisions contained in this  letter will be applicable in his case also."

       On or about 27.08.1999, one Shri G.P. Srivastava who was immediate  junior to the respondent was promoted to the post of Senior Administrative  Grade but only on 24.09.1999, a departmental proceeding was initiated  against the respondent by issuance of a chargesheet.   

       An original application filed by the respondent before the Calcutta  Bench of the Central Administrative Tribunal, which was eventually  transferred to the Cuttack Bench, praying for a direction to the appellants to

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promote him to the said post from the date when his junior was appointed,  was allowed by a judgment and order dated 19.08.2003.  A writ petition  filed by the appellants thereagainst has been dismissed by the High Court, by  reason of the impugned judgment.

       The Tribunal as also the High Court proceeded to determine the issue  on the basis that the term "Government Servant under cloud" would be the  employees against whom a chargesheet has been issued, relying on or on the  basis of paragraph 2 of the said circular, the relevant portion whereof reads  as under:

"2. At the time of consideration of the case of  Government Servants for empanelment, 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 a  charge sheet has been issued and the disciplinary  proceedings are pending; (iii)   Government Servants in respect of whom  prosecution for a criminal charge is pending"

       In arriving at its conclusion the High Court furthermore placed strong  reliance upon a judgment of this Court in Union of India and Others v. K.V.  Janakiraman and Others [(1991) 4 SCC 109].

       Mr. R. Mohan, learned Additional Solicitor General appearing on  behalf of the appellants would contend that the circular letter received wrong  interpretation at the hands of the Tribunal and/ or the High Court inasmuch  as upon a proper reading thereof it would appear that a complete procedure  has been laid down therein providing for the mode and manner in which the  cases of those officers against whom a charge is pending should be  considered for promotion.  Strong reliance in this behalf has been placed on  Union of India and Another v. R.S. Sharma [(2000) 4 SCC 394], Delhi  Development Authority v. H.C. Khurana [(1993) 3 SCC 196], and Union of  India v. Kewal Kumar [(1993) 3 SCC 204].

       Mr. S.K. Dholakia, learned senior counsel appearing on behalf of the  respondent, on the other hand, would contend that paragraph 6 of the said  circular must be read in the context of paragraph 2 thereof.

       Promotion is not a fundamental right.  Right to be considered for  promotion, however, is a fundamental right.  Such a right brings within its  purview an effective, purposeful and meaningful consideration.  Suitability  or otherwise of the candidate concerned, however, must be left at the hands  of the DPC, but the same has to be determined in terms of the rules  applicable therefor.  Indisputably, the DPC recommended the case of the  respondent for promotion.  On the day on which, it is accepted at the bar, the  DPC held its meeting, no vigilance enquiry was pending.  No decision was  also taken by the employer that a departmental proceeding should be  initiated against him.   

       Terms and conditions of an employee working under the Central  Government are governed by the rules framed under the proviso appended to  Article 309 of the Constitution of India or under a statute.  The right to be  promoted to a next higher post can, thus, be curtailed only by reason of valid  rules.  Such a rule again, however, cannot be construed in a manner so as to  curtail the right of promotion more than what was contemplated by law.   

       Whereas paragraph 6 of the said circular letter provides for a sealed  cover procedure to be adopted by the DPC, the same has to be taken  recourse to only in the event circumstances mentioned in paragraph 2 thereof  arise after the recommendation of the DPC.  The recommendations of the

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DPC, therefore, can be refused to be given effect to only inter ala when one  or the other conditions mentioned in paragraph 2 of the said circular stand  satisfied which in the instant case would mean that as against the respondent  a chargesheet had been issued or, in other words, a disciplinary proceeding  was pending.  Admittedly, a chargesheet was issued as against him only on  24.09.1999.

       Thus, there was no bar in promoting the respondent during the period  14.01.1999 to 27.08.1999.  No material was placed before the DPC to take  recourse to the sealed cover procedure.  In fact, none existed at the material  time.  Paragraph 2 of the said circular specifically refers to submission of  chargesheet as the cut-off date when a departmental proceeding can be said  to have been initiated.  Even otherwise such a meaning had been given  thereto by this Court in K.V. Janakiraman (supra) holding:   

"16\005The sealed cover procedure is to be resorted  to only after the charge-memo/charge-sheet is  issued. The pendency of preliminary investigation  prior to that stage will not be sufficient to enable  the authorities to adopt the sealed cover procedure.  We are in agreement with the Tribunal on this  point. The contention advanced by the learned  counsel for the appellant-authorities that when  there are serious allegations and it takes time to  collect necessary evidence to prepare and issue  charge-memo/charge-sheet, it would not be in the  interest of the purity of administration to reward  the employee with a promotion, increment etc.  does not impress us. The acceptance of this  contention would result in injustice to the  employees in many cases. As has been the  experience so far, the preliminary investigations  take an inordinately long time and particularly  when they are initiated at the instance of the  interested persons, they are kept pending  deliberately. Many times they never result in the  issue of any charge-memo/charge-sheet. If the  allegations are serious and the authorities are keen  in investigating them, ordinarily it should not take  much time to collect the relevant evidence and  finalise the charges. What is further, if the charges  are that serious, the authorities have the power to  suspend the employee under the relevant rules, and  the suspension by itself permits a resort to the  sealed cover procedure\005"

       Reliance placed by Mr. Mohan on R.S. Sharma (supra), in our  opinion, does not advance the appellant’s case.  In that case, cases where  sealed cover procedure were applicable were contained in paragraph 2 of the  office memorandum dated 12.01.1988 which reads as under:

"Cases where ’Sealed Cover Procedure’ applicable  .\027At 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 a

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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 CBI or any agency, departmental or  otherwise."  

                               (Emphasis supplied)  

       Serious allegations of financial misdemeanours were made against the  respondent therein.  Central Bureau of Investigation took up investigation.   He was suspended on 10.03.1988.  Although the said order of suspension  was revoked, investigation continued.  The DPC considered his case for  promotion on 3.04.1991 and resorted to sealed cover procedure.  Only in the  aforementioned situation, K.V. Janakiraman (supra) and other decisions  following the same stood distinguished opining  that paragraph 7 of the said  office memorandum would be attracted, which is in the following terms:

"Sealed cover applicable to an officer coming  under cloud before promotion .\027A 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 DPC are  received but before he is actually promoted, will  be considered as if his case had been placed in a  sealed cover by DPC. He shall not be promoted  until he is completely exonerated of the charges  against him and the provisions contained in this  OM will be applicable in his case also."  

       It was held:

"\005One is that, what the Department did not do is  not the yardstick indicated in para 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  para, the recommendations of 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 para 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."

       Therein H.C. Khurana (supra) and Kewal Kumar (supra) were  noticed.

       In H.C. Khurana (supra), the question was as to what would be the  meaning of the word ’issued’ when a disciplinary proceeding had been  initiated by framing the chargesheet and the same had been despatched.   Paragraph 2 of the circular letter in question was similar to the case of R.S.  Sharma (supra).  It is in that context, what would be the meaning of the word  ’issued’ when the decision has been taken to initiate disciplinary proceeding  came up for consideration.  As the circular contained a provision of that  nature which is absent in the present case, the said decision, in our opinion,  also has no application in the instant case.

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       For the self-same reasons, the decision of this Court in Kewal Kumar  (supra) is also not attracted.

       This aspect of the matter has recently been considered in Coal India  Ltd. & Ors. v. Saroj Kumar Mishra [(2007) 5 SCALE 724].

       We, therefore, are of the opinion that there is no infirmity in the  impugned judgments.   Accordingly, the appeal is dismissed with costs.    Counsel’s fee assessed at Rs. 25,,000/-.