Harsh Kumar v. Secretary, Ministry Of Environment & Forests

HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)

1. The applicant has filed this Original Application for issuance of a direction to the respondents to promote him as Chief Conservator of Forests w.e.f. 30.9.2008, when post became available and to file the charge-sheet and issue a formal order for withdrawal of prosecution sanction as per Government of India instructions and advice of the Ministry Law etc.

2. At the very outset, the applicant appearing in person has made a conscious statement at the bar to restrict this Original Application qua one relief only i.e. consideration of his case for promotion to the post of Chief Conservator of Forests w.e.f. 30.9.2008 as there was nothing pending against him as on that date either on departmental side or in any criminal case.

3. Brief note of the facts would help the effective adjudication of the controversy. The applicant joined as member of Indian Forest Service on 27.05.1985 and was allocated to Punjab Cadre. He was granted Senior Scale of Indian Forest Service in 1989. He was promoted as Conservator of Forests w.e.f. 2001 in pursuance of order passed in CWP No.18639-CAT-2002.

4. A PIL (CWP No.1134 of 2004) came to be filed in the Honble High Court of Punjab and Haryana for illegal running of the Golf Course in which an order dated 12.10.2004 (A-8) was passed for demolition of the same and to hand over the case to Central Bureau of Investigation for fixing up the accountability. However, on a challenge to the decision in the Honble Supreme Court by way of a SLP ) No.11581-82/2004, the decision of Honble High Court was stayed on 6.12.2004. The CBI filed an FIR No.13 dated 7.4.2006 in case No. RCCHG2006A00013 dated 13.4.2006 against Lt. Col. B.S. Sandhu and others, including the applicant under Section 120-B IPC; under section 13 (2) read with 13 (1)(d) of Prevention of Corruption Act, 1988 etc. Prosecution sanction against the applicant was accorded by the Government of India on 16.12.2008 under section 19 of Prevention of Corruption Act, 1988. The FIR was challenged by the applicant by filing a Crl. Misc. no. 45437-M of 2006 which was dismissed on 16.4.2009 (A-9). The applicant then filed SLP (Cr.) No. 7647 of 2009 in the Honble Apex Court against the order of Honble High Court. Vide order dated 12.1.2010, the further proceedings in CBI case were stayed. The applicant was allowed non-functional grade in the pay scale of Chief Conservator of Forests w.e.f. 22.2.2007. The DPC was convened on 9.5.2007 and in 2008 but the case of the applicant was not approved for promotion. The Government of India withdrew the prosecution sanction against the applicant on 4.2.2011, after consultation with the Ministry of Law. The DPC was again convened on 29.3.2011 but the applicants case was not approved for promotion. The DPC held its meeting on 29.9.2011, 18.12.2012 and 18.4.2013 but the applicant has not yet been promoted. The factual position is not disputed by the respondents.

5. The stand taken by the respondents is that the case of the applicant for promotion to the rank of Chief Conservator of Forests was considered in the review meeting of the Screening Committee on 18.4.2013 and sealed cover procedure was adopted as per rules and law. They deny that the prosecution sanctions were withdrawn by the respective competent authorities. Grant of non-functional grade (financial upgradation) is personal to the concerned individual and cannot be treated as a promotion.

6. We have heard the applicant in person, Mr. Deepak Agnihotri, learned counsel for respondent No. 1 and Mr. D.S. Chahal, learned counsel for the Respondents No.2&3.

7. The short and precise grievance of the applicant is that he is entitled to consideration for promotion to the level of Chief Conservator of Forest w.e.f. 30.09.2008 the date when the vacancy therefor became available and as on that relevant date, no charge-sheet was issued or pending against him either in the departmental proceedings or in a Criminal case. Whereas the respondents would argue otherwise to claim that the work and conduct of the a applicant is under clouds and as such he cannot be promoted.

8. Concededly, the applicant became eligible for promotion to the post of Chief Conservator of Forests on the retirement of one Mr. Swaran Singh on 30.09.2008. The only stand taken by the respondents is that on the directions given by the Honble High Court, the CBI conducted a preliminary inquiry on 29.10.2004 in the matter and ultimately the CBI registered FIR against the applicant on 27.04.2006. The first meeting of the selection Committee was held on 27.03.2011 which recommended the promotion of eligible officers including the applicant for promotion to the post of Chief Conservator of Forest. Since a CBI case was pending against the applicant at that time, his case, after consideration, was kept in a sealed cover in view of the law laid down in the case of Union of India v K.V. Jankiraman, (1991) 4 SCC 109.

9. The applicant submits that when the first meeting of the said committee was held, there was nothing against him except an FIR by the CBI, therefore, the action of the respondents in keeping his case for promotion to higher post, in a sealed cover, by applying the ratio of judgment in Janki Ramans case (supra) is bad in law. He submits that there has been discrimination against him inasmuch as two other persons namely Sh. S.C. Aggarwal, IAS and Sh. K.B.S. Sidhu, IAS, along with him were also proceeded against on criminal side but they were approved for promotion and he has been left in lurch. He further submits that no doubt the prosecution sanction qua him had been granted but the same lost its relevance once the very proceedings in CBI Court were stayed and as such cannot be used to stall his promotion and it is an admitted position that no charges have been framed against the applicant in the criminal case. On the other learned counsel for the respondents submitted that there is no discrimination qua the applicant inasmuch as prosecution sanctions in respect of Sh. S.C. Aggarwal, IAS and Sh. K.B.S. Sidhu, IAS had been refused by the Government of I India and State Government whereas prosecution sanctions in the case of the applicant, were accorded by the Government of India and State Government, therefore, case of the applicant is different from that of the other officers. In so far as formal order of withdrawal of the prosecution sanction against the applicant is concerned, it was stated that due to pendency of case in the court, the formal order could not be passed. In support of his argument, applicant has placed reliance upon a recent judgment of the Honble Supreme Court in the case of Union of India & Others Vs. Anil Sarkar, SLP No. 2537/2013 decided on 15.03.2013 wherein it has been held that till the Criminal Court issues a charge-sheet, it cannot be said that an employee is under cloud and his case is to be deferred or put in a procedural sealed cover.

10. Learned counsel for the respondents do not dispute the fact that on the date when the vacancy arose on 30.09.2008, nothing against the applicant was pending but only an FIR was registered by the CBI Court in which no challan has yet been presented as the proceedings stand stayed. However, the learned counsel for the respondents submitted that the case of the applicant would be covered by the decision in the case of Union of India & Others Vs. K.V. Jankiraman & Others, (1991) 4 SCC 109 and the case of the applicant has right been kept in sealed cover. He goes on to state further that in view of latest instructions even if DPC declares a person fit for promotion but before issuance of actual order, he is charge-sheeted on departmental or criminal side, he cannot be promoted.

11. We have heard the applicant in person and the learned counsel for the respondents and have examined the material available on record with their able assistance and have given thoughtful consideration to the matter.

12. We had an occasion to consider an identical controversy in the case of O.A.NO.293-HR-2013 (Ashok Kumar Saini Vs. Union of India & Others), decided on 8.10.2013 and the issue has been thrashed threadbare, as under :- 16. xxx The guidelines/procedure dated 27.2.2011 issued by the UPSC under 5.2(D) lays down the treatment of Integrity Certificate/Departmental Proceedings/Criminal Proceedings etc. Para 6 reads as under:- 6. The name of the officer, whose integrity certificate has been withheld by the State Government or against whom departmental or criminal proceedings are pending may be included in the Select List by the Selection Committee provisionally subject to grant of integrity certificate or clearance in the departmental or criminal proceeding. If the Selection Committee finds the officer as otherwise suitable for promotion on the basis of an overall assessment of his ACRs as per the procedure indicated in the paragraphs 4.1 to 4.5 above. The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer in disciplinary proceedings or filed in a court of law in criminal proceedings, as the case may be.

17. A perusal of the above instructions would reveal that, an officer whose Integrity Certificate has been withheld by the State Government and against whom a departmental/criminal proceedings is pending, may be included in the Select List by the Selection Committee provisionally, subject to Integrity Certificate or clearance in the departmental or criminal proceedings.

18. Concededly, there is no departmental proceedings pending against the applicant. Above mentioned two FIRs are pending against the applicant against which he has approached the Honble High Court wherein the prosecution sanction has been stayed. Meaning thereby, as on date, there is no criminal proceedings pending against the applicant because it is settled law that the criminal case is said to be pending on the date when the charges have been framed in the Criminal Court of law by taking cognizance thereof.

13. The Bench further took note of decision of learned Coordinate Bench of this Tribunal i.e. C.A.T. Ahmedabad Bench in A.D. Khadtare vs Union Of India and Ors. decided on 17 July, 2001, which had endorsed the view that the sanction for prosecution may or may not result into the filing of the charge sheet against the accused and on subsequent criminal trial, the agency who has obtained the sanction for prosecution may on the receipt of further evidence decide of not filing the charge sheet against the accused person. The Govt. may also subsequently revoke the sanction for prosecution. The same can also be set aside by the Courts if challenge therein. Hence a sanction for prosecution does not bring a Govt. servant, against whom the same is obtained, under a cloud. His promotion can be withheld only if the sanction for prosecution is ultimately converted into a criminal charge sheet against him and the charge sheet is filed in the criminal Court. Merely because the sanction for prosecution is obtained against a particular Govt. servant, he cannot be debarred from getting his due promotion, all the more when he is found suitable for the same and selected by the DPC.

14. Similar view was taken by this very bench of the Tribunal in O.A.No.436-PB-2012  Maninder Pal Singh Vs. Union of India & Others decided on 26.9.2013 holding that on the crucial date when the DPC met, there was nothing against the applicant and as such a consideration for promotion could not be denied to him. Ultimately the Bench held and directed in paras as under :- 21. xxx As discussed above, no disciplinary proceedings have either been initiated nor any criminal case can be said to have begun or pending as no charge-sheet has been filed in those two named FIRs and naturally so when prosecution sanctions have already been stayed by the Honble High Court. Accordingly the action of the State of Haryana in withholding the integrity certificate is invalidated.

22. In view thereof this O.A. is allowed. We direct the respondents to issue the Integrity Certificate in favour of the applicant within fifteen days from the date of receipt of copy of this order and take further action as per rules and law in the relevant behalf. Needless to say that induction of the applicant to IPS will, however, be subject to ultimate outcome of pending FIRs.

15. Honble Apex Court in Union of India Vs. K.V. Jankiraman etc. AIR 1991 SC 2010, has held that when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal case is issued to the employee, only then it can be said that the proceedings stand initiated. Sealed cover procedure is to be adopted only after charge memo/charge sheet is issued and not prior thereto. Similar view was taken in Union of India Vs. Smt. Sudha Salhan, C.A. No. 4266 of 1991 decided on 07.01.1998. In the Office Memo No.22011/4/91-Estt.(A) dated 14.9.1992, Sealed Cover Procedure can be adopted only if

(i)Government servants are 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 criminal charge is pending. In this case it is apparent that none of the above eventualities being available in this case, the DPC/respondents could not have refused to promote the case of the applicant or issue his promotion order.

16. However, in so far as plea qua non-promotion if one comes under clouds after recommendation by DPC but before issuance of promotion orders, the applicant has placed on record decision of Honble Apex Court in the case of Union of India & Ors. vs Anil Kumar Sarkar, CIVIL APPEAL NO. 2537 OF 2013, (Arising out of S.L.P. (C) No.1933 of 2011) decided on 9.10.2001 in which after considering OM dated 14.9.1992 it was held that it is not in dispute that the relevant date is 21.04.2003, when the respondents batch mates were promoted, admittedly on that date the respondent was not under suspension, no charge sheet was served upon him nor he was facing any criminal prosecution. In such circumstances, in terms of paragraph 2 referred to above, the recommendation of the DPC has to be honoured and there is no question of applying sealed cover process.

17. It is admitted position at all hands that on the relevant date when the DPC held its meeting, there was nothing against the applicant inasmuch as he has not yet been charge-sheeted in the criminal case as the proceedings stand stayed. There does not appear to be any merit in the objection taken by the respondents regarding existence of prosecution sanction to deny promotion to the applicant inasmuch as law is very clear on the point that issuance of prosecution sanction is no bar for promotion of an officer. Considering the above factual as well as legal scenario, we are of the view that till the charges are framed against an officer, it cannot be said that he is under clouds. Merely filing of an FIR cannot be taken as a ground to defer his case of promotion or put it in a sealed cover as held by the Honble Supreme Court in the case of Janki Raman(supra) and clarified in a recent pronouncement in the case of Anil Kumar (surpa). The relevant para thereof is quoted hereunder: 17.  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. After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that the Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits..We see no reason to interfere with this order. The appeal, therefore, stands dismissed. The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.

18. In view of the above discussion, this O.A. is Allowed and disposed of on the restricted prayer of the applicant. The respondents are directed to open the sealed cover and consider the case of the applicant for promotion to the post of Chief Conservator. The respondents, while considering the case of the applicant, will take into account the fact that there was nothing against the applicant as on the date of the first meeting of the Selection Committee for promotion was held and also the law laid down by the Honble Supreme Court in the case of Anil Sarkar(supra). Needful be done within a period of two months from the date of receipt of a copy of this order. No costs. (SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh Dated: 11.11.2013