HEMANT GUPTA, J.

Challenge in the present writ petition is to an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short ‘the Tribunal’) on 11.11.2013, whereby an Original Application filed by Harsh Kumar - respondent No. 1 (for short ‘the applicant’) was allowed and the present petitioners were directed to open sealed cover and consider the case of the applicant for promotion to the post of Chief Conservator of Forest. It was also ordered that the petitioners will take into account the fact that there was nothing against the applicant on the date of the first meeting of the Selection Committee for promotion.

The brief facts leading to the present writ petition are that the applicant joined Indian Forest Service on 27.05.1985 and was allocated to Punjab Cadre. In a Public Interest Litigation bearing CWP No. 1134 of 2004 titled ‘Court on its own motion v. Col. B.S Sandhu’, an order was passed for demolition of a Golf Course in the reserved forest area and the matter was handed over to the Central Bureau of Investigation (CBI) to fix up the accountability. Such direction, subject matter of Special Leave Petition, which the applicant submits has since been allowed and remanded the matter to this Court for fresh decision.

In pursuance of the direction of the Division Bench in the Public Interest Litigation, an FIR was lodged by the CBI on 07.04.2006 The applicant challenged the said FIR by way of CRM No. 45437-M of 2006, which was dismissed by this Court on 16.04.2009 In Special Leave Petition (Criminal) No. 7647 of 2009 against the said order, the Hon'ble Supreme Court has stayed further proceedings vide order dated 12.01.2010 It is the case of the applicant that Government of India earlier granted sanction to prosecute him on 16.12.2008, but later withdrew the prosecution sanction on 04.02.2011 after consultation with the Ministry of Law.

The learned Tribunal allowed the application, inter alia, on the ground that the applicant is entitled to be considered for promotion to the level of Chief Conservator of Forests w.e.f 30.09.2008 i.e the date when the vacancy became available. Since on that date no charge-sheet was issued or pending against him either in the departmental proceedings or criminal proceedings, the applicant is entitled to be promoted.

It may be noticed that though the vacancy became available on the retirement of Mr. Swaran Singh, the then Chief Conservator of Forests on 30.09.2008, but the first meeting to fill up the post of Chief Conservator of Forests was held on 29.03.2011 Since the criminal case was pending against the applicant, his case was kept in a sealed cover. It may be mentioned that thereafter departmental proceedings have been initiated against the applicant for which a charge-sheet has been served on 10.02.2012 under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969.

Learned counsel for the petitioners has vehemently argued that the Tribunal has erred in issuing the directions, as the existence of vacancy does not make an officer entitled for consideration for promotion. It is for the employer to take a decision to fill up the post available. Reliance is placed upon a Division Bench judgment of this Court in CWP No. 17079-CAT of 2013 titled ‘Union Territory, Chandigarh Administration v. Tarlochan Singh’ decided on 05.03.2014 In view thereof, it is contended that the relevant date is 29.03.2011, when the first meeting of the Selection Committee was held to consider the eligible Officers for promotion to the post of Chief Conservator of Forests. On the said date, not only an FIR was lodged, but also a report under Section 173 of the Code of Criminal Procedure (for short ‘the Code’) was filed before the CBI Court on 09.12.2008 Therefore, in terms of Union of India v. K.V JankiramanAIR 1991 SC 2010 itself, the proceedings of the Departmental Promotion Committee were rightly kept in sealed cover relating to the applicant. Since the departmental proceedings were initiated subsequently against the applicant, therefore, the criminal proceedings and departmental proceedings are pending against the applicant, which mandate the petitioners to resort to sealed cover procedure in the case of the applicant in the subsequent meetings of the Selection Committee as well.

On the other hand, respondent No. 1 submitted that against the order passed by this Court on 16.04.2009 dismissing his petition for quashing of the criminal proceedings, a Special Leave Petition has been filed, wherein further proceedings have been stayed. Stay of further proceedings means suspension of the criminal proceedings against him. Therefore, his case cannot be kept in a sealed cover. It is further argued that in terms of instructions contained in Para 18.2, the advice of Ministry of Law to withdraw the prosecution sanction is binding on the State. Since the Ministry of Environment and Forests has decided to withdraw from the prosecution after advice from the Ministry of Law, therefore, except formal order, the prosecution is deemed to have been withdrawn. It is also argued that the subsequent communication dated 02.04.2013 (Annexure P-15) issued by Ministry of Environment and Forests declining withdrawal of the prosecution has been stayed in a separate writ petition bearing CWP No. 28172 of 2013 by this Court on 19.12.2013, therefore, the criminal proceedings cannot be deemed to be pending against the applicant.

Before considering the respective arguments raised on behalf of the petitioners as well as respondent No. 1, we wish to reproduce the relevant extracts from the documents and/or orders, which are necessary for the purpose of present writ petition. The same are as under:

Order dated 12.01.2010 passed in SLP (Criminal) No. 7647 of 2009

“Learned counsel has appeared for all the respondents. The matter is, therefore, ready as regards service. The respondents will be entitled to file their respective counter affidavits to the Special Leave Petition within two weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List the matter after pleadings are complete.

In the meantime, there will be stay of further proceedings in case No. RCCHG2006A0013 dated 7th April, 2006, under Section 120-B IPC, Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, Section 63 of the Indian Forest Act, 1927 and Section 19 of the Punjab Land Preservation Act, 1900, pending before the Special Judge, C.B.I Court at Patiala”

Letter dated 04.02.2011

“I am directed to refer to this Ministry's letters of even number dated 14 May, 2009; 1st April, 2010; 10 June, 2010 and also D.O Letter dated 8 July, 2010, wherein the State Government was requested to furnish parawise comments on the representation of Shri Harsh Kumar, IFS. The comments of State Government are still awaited.

2. However, based on the new facts in the representation of Shri Harsh Kumar, the advice of the Ministry of Law was sought. The Ministry of Law in their advice has agreed to withdraw the prosecution sanction issued against Shri Harsh Kumar. They have advised ‘As held by the Supreme Court, the order of sanction is an administrative act and therefore, it is open to the competent authority to reconsider its earlier order. Hence, the sanction orders in case of Shri Harsh Kumar dated 16.12.2008 may be withdrawn and the court be informed accordingly.

3. The Government of Punjab is once again requested to expedite matter and take action as per Government of India's instructions and furnish their comments to this Ministry immediately for further consideration of the case.”

Letter dated 02.04.2013

“Reference is invited to Punjab Government's letter No. 19/100/2008-Ft.1/8300 dated 29 November, 2012, on the above mentioned subject.

2. The matter has been examined in the Ministry and found that the validity of the new facts or otherwise cannot be predetermined at this stage as this will come up in the course of the proceeding pending before the Supreme Court. As such, the request made by Shri Harsh Kumar for withdrawl of the prosecution sanction cannot be agreed to at this stage.”

Order dated 19.12.2013 passed in CWP No. 28172 of 2013

“xx xx xx

In the meantime, the operation of the impugned letter dated 02.04.2013 (Annexure P-35) shall remain stayed till the next date of hearing.”

Instruction 18.2

“18.2 Request for withdrawal of prosecution may also come up for the accused. Such requests should not generally be entertained except in very exceptional cases where, for instance, attention is drawn to certain fresh, established or accepted facts which might alter the whole aspect of the case. In such, cases also the administrative Ministry concerned should consult the Ministry of Law and accept their advice.”

Having heard learned counsel for the petitioners and respondent No. 1 appearing in person, we find that the order passed by the Tribunal is not sustainable in law. It has also come on record that immediate junior to the applicant was promoted on 23.12.2012 i.e after the departmental proceedings were initiated against the applicant.

It is on 02.11.2012 (Annexure P-6), Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), Government of India has issued instructions pertaining to vigilance clearance for promotion based on instructions dated 14.09.1992 after the judgment of Hon'ble Supreme Court in K.V Jankiraman's case (supra). Instructions dated 14.09.1992 provide for vigilance clearance for promotion can be denied in the following three circumstances:

“(i) Government servants under suspension;

(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and

(iii) Government servants in respect of whom prosecution for a criminal charge is pending.”

The relevant extract in respect of promotion of the Officers from the instructions dated 02.11.2012 (Annexure P-6) reads as under:

“5. The O.M No. 22012/1/99-Estt.(D) dated 25 October, 2004 further provides that a DPC shall assess the suitability of the Government servant coming within the purview of the circumstances mentioned in para 2 of the Office Memorandum No. 22011/4/91-Estt.(A) dated 14.09.1992, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. No promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/dereliction of duty etc., there is a serious complaint and the matter is still under investigation, the Government is within its right to suspend the official. In that case, the officer's case for promotion would automatically be required to be placed in the sealed cover.

6. When a Government servant comes under a cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penal/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued or the officer is placed under suspension. The pendency of preliminary investigations prior to that stage is not sufficient to adopt the sealed cover procedure.

7. The law on sealed cover based on the judgment of the Apex Court in Union of India v. K.V Janakiraman (AIR 1991 SC 2010), is by now well settled. The O.M dated 14.09.1992 confined the circumstances for adopting sealed cover to the three situations mentioned in para 2 of the said O.M Even after recommendation of the DPC, but before appointment of the officer if any of the three situations arise, the case is deemed to have been kept in sealed cover by virtue of para 7 of the O.M dated 14.09.1992

8. As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M dated 14.09.1992 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 provides as under:

“(b) judicial proceedings shall be deemed to be instituted -

(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made’.”

Such instructions are after the relevant date of consideration, but we find that in material particulars, even the earlier instructions which were being examined in K.V Jankiraman's case (supra) are not very different. The proceedings of the Departmental Promotion Committee in respect of applicant have been kept in sealed cover not for the reason that an FIR stands lodged, but for the reason that investigations have been completed and report under Section 173 of the Code has been submitted to the CBI Court, who has taken cognizance of the matter in terms of Section 190 of the Code. Thus, the prosecution for criminal charge was pending against the applicant on the day of the meeting of the Selection Committee. In respect of the argument that there is stay granted by the Hon'ble Supreme Court, it is submitted that stay is of further proceedings pending before the CBI Court. Such order does not give rise to cessation of criminal proceedings pending against the applicant. Criminal proceedings would remain pending till such time, the same are quashed by the competent Court of law or decided on merits.

In respect of withdrawal of prosecution, the communication dated 04.02.2011, as reproduced above, was a communication to enable the Punjab Government to take an appropriate decision thereon. It is inter-departmental communication not issued to the applicant, therefore, neither it is a final decision of withdrawing prosecution nor creates any enforceable right in favour of the applicant. Still further, the final decision dated 02.04.2013 taken by the Ministry of Environment and Forests is of declining withdrawal of the prosecution sanction. Even if, the withdrawal of the prosecution sanction is stayed, it does not lead to withdrawal of the prosecution in view of the judgment of the Hon'ble Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, MadrasAIR 1992 SC 1439. The Hon'ble Supreme Court has held to the following effect:

“10. ………While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending.”

It is apart from the fact that the Punjab Government has never passed an order of withdrawal of the prosecution as mandated in the communication dated 04.02.2011 Therefore, in the absence of withdrawal of the prosecution; in the absence of quashing of FIR lodged against the applicant and keeping in view the fact that a report under Section 173 of the Code has been filed before the competent Court and on which cognizance has been taken in terms of Section 190 of the Code, it cannot be said that the criminal proceedings have come to an end and that the applicant is entitled to be promoted from the date the vacancy arose or from the date the Selection Committee considered the claim of the applicant for promotion.

Mr. Harsh Kumar - respondent No. 1 could not dispute the question that the relevant date for consideration is not the date of availability of the vacancy, but on the date the consideration takes place. In fact, a Division of this Court in Tarlochan Singh's case (supra) held to the following effect:

“In view of the various judgments referred to above, we find that a person is not entitled to seek promotion from the day vacancies arises. It is for the employer to initiate the process of promotion and to fill up the posts, keeping in view its requirements. The employee has no right to claim promotion from a particular date or for a direction that the vacancy in the promotional post should be filled up. However, if the decision of the employer is to fill up the promotional post is actuated by the considerations other than administrative, such action or inaction can be subjected to the judicial review, but there cannot be any direction to grant promotion from the date the vacancy arises. However, in case, an Officer is given Current Duty Charge or promoted on adhoc basis, he shall be entitled to the pay of the promoted post as has been held in Arindam Chattopadhyay v. State of West Bengal(2013) 4 SCC 152 and State of Haryana v. P.K Grover(1983) 4 SCC 291.”

Since the Departmental Promotion Committee met on 29.03.2011, therefore, it is the said date, which is relevant to consider, whether the promotion case of the applicant has to be kept under sealed cover.

In K.V Jankiraman's case (supra), the Full Bench of the Central Administrative Tribunal was considering the office memorandum dated 30.01.1982 The Bench held that the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before that date. The Hon'ble Supreme Court, while examining the question as to what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee, considering the circular dated 30.01.1982 and held that the pendency of preliminary investigation prior to filing of a charge-sheet in a criminal prosecution will not be sufficient to enable the authorities to adopt the sealed cover procedure. The Hon'ble Supreme Court accepted the conclusion of the Full Bench as correct and held to the following effect:

“6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The 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……

It was then contended contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:

“(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;.

(2) …………..

(3) …………..

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before.”

There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.”

In Union of India v. Anil Kumar Sarkar(2013) 4 SCC 161, 11 FIRs were registered against the respondent and such 11 cases were amalgamated to 3 special cases registered in the year 2004, whereas the promotions were effected on 21.04.2003 The criminal proceedings and the departmental proceedings were made basis to resort to sealed cover procedure. Relying upon K.V Jankiraman's case (supra), it was held that departmental proceedings commence when charge-sheet is issued. The Hon'ble Supreme Court dismissed the appeal of Government of India in view of the fact that the charge-sheet in respect of departmental proceedings was issued after the promotion i.e on 12.08.2003 or later, whereas the charge-sheet in criminal proceedings was filed in the year 2004. The relevant date for consideration for promotion is the year 2003. However, in the present case, it is not the issuance of the charge-sheet in the departmental proceedings, which led to resort to sealed cover procedure, but filing of a report under Section 173 of the Code on completion of investigations by the CBI, which led the petitioners to resort to sealed cover procedure. Since the report under Section 173 of the Code was filed before the first meeting of the Departmental Promotion Committee on 29.03.2011, therefore, the sealed cover procedure has been right adopted.

Still further, the communication dated 04.02.2011 is not a final communication leading to withdrawal from the prosecution. The advice of Ministry of Law was obtained and withdrawal from the prosecution advised. But the order in this respect was to be passed by the State Government. The State Government has not passed any order either withdrawing from the prosecution or otherwise. Therefore, such inter-departmental communication directing the Punjab Government to withdraw from the prosecution will not lead to an inference that the prosecution stands withdrawn. The administrative instructions such as para 18.2, as reproduced above, are the guidelines, which have to be kept in view but such guidelines are not enforceable in law. Reference may be made to Union of India v. S.L Abbas(1993) 4 SCC 357, wherein it has been held to the following effect:

“7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

A Full Bench of this Court in Jagir Singh, Kanungo v. The State of Punjab through the Secretary Vigilance, Punjab, Chandigarh1993 (1) PLR 376, has the occasion to interpret the guidelines issued by the State of Punjab for conclusion of the inquiry proceedings in a time bound manner. It was held that if the enquiry proceedings are not completed within the aforesaid period, no right accrues to the employee to approach the Court of law for enforcement of those guidelines. It was held to the following effect:

“3. ….…If the State Government have issued certain guidelines for the guidance of the various departments or the disciplinary authorities to impress upon them the necessity of finalizing the departmental proceedings expeditiously or even within a fixed period, it does not mean that after the expiry of that period, a right in law accrues to the employee to approach the Court of law for the enforcement of those guidelines…”

Thus, we find that the instructions issued such as para 18.2 are in the nature of guidelines. They are not mandatory and are not enforceable in law.

In view of the above discussion, we find that the Tribunal has erred in law and in fact in allowing the Original Application filed by the applicant. Consequently, while allowing the present writ petition, the order passed by the Tribunal is set aside. The sealed cover shall be opened only after the conclusion of the criminal proceedings or departmental proceedings, which have since been initiated against the applicant.