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Synopsis

The Supreme Court on September 24, 2024 said that the pendency of investigation and grant of prosecution sanction against a central government officer is not sufficient to enable the authorities to adopt the sealed cover procedure in the departmental promotion committee.

"The disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued," a bench of Justices Sandeep Mehta and R Mahadevan said.

The apex court dismissed a civil appeal filed by the Union government against the Delhi High Court's order of April 26, 2013, which rejected a writ petition against the Central Administrative Tribunal's decision.

The tribunal had allowed an application filed by one Doly Loyi against the denial of promotion from the post of Additional Commissioner of Income Tax to the post of Commissioner of Income Tax by the Departmental Promotion Committee on February 22, 2007. It had directed the Union government to open the sealed cover and promote the officer with back wages.

Since the officer had attained eligibility for promotion to the post of Commissioner of Income Tax, his case was also considered for promotion by the DPC. However, the vigilance certificate of the respondent was withheld and the recommendations of the DPC with regard to the promotion of the respondent were kept in a sealed cover on the basis that ‘prosecution for certain criminal charges’ was pending against him, and thus, he was deprived from being considered for promotion along with his batchmates.

On December 31, 2001, an FIR was registered against the officer for the offences punishable under Section 120B of the Indian Penal Code, 1860, and Sections 13(1) and 13(1)(d) of the Prevention of Corruption Act, 1988, alleging inter alia that the officer, while working as the Special Secretary (Finance), Government of Arunachal Pradesh acted in conspiracy with other officers and committed criminal misconduct by abusing his position as a public servant. A sanction on June 2, 2006, was accorded by the CBDT (Department of Revenue, Ministry of Finance, Government of India) for the prosecution of the respondent-officer in respect of the allegations before the concerned court.

The Union government argued that since the FIR was lodged and the sanction was accorded, the department was justified in invoking the sealed cover procedure while considering the case of the respondent-officer for promotion. It emphasised that once the sanction was granted, the prosecution for criminal charge could be said to be pending.

It also said that an Office Memorandum of September 14, 1992, did not specify the stage when the prosecution for a criminal charge could be stated to be pending and hence the definition of pendency of judicial proceedings provided in Rule 9(6)(b)(i) of the CCS(Pension) Rules, 1972, should have been adopted, which provided that the judicial proceedings should be deemed to be instituted in the case of criminal proceedings, on the date on which the complaint or report of Police officer, of which Magistrate takes cognizance is made. 

The respondent-officer said that the denial of promotion to him by resorting to ‘the sealed cover procedure’ was ex facie illegal and bad in the eyes of the law. 

He also said that he was not placed under suspension; no departmental proceedings were ever initiated against him and no criminal charge was pending against him and thus the restrictive clauses would not ex-facie operate against his right to be considered for promotion.

The court examined the core issue as to whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge was pending against the respondent government servant and whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover.

Referring to the OM of September 14, 1992, the bench noted that it was clear that it prescribed the conditions under which the assessment done by the DPC was to be kept in the sealed cover. 

According to this OM, the sealed cover procedure can be resorted to in respect of three categories of government servants i.e. those under suspension, those in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and those in respect of whom prosecution for criminal charge is pending, the bench pointed out.

In the case, the bench said that the question requiring consideration was whether a mere grant of prosecution sanction would be sufficient to infer that the prosecution for a criminal charge was pending against the respondent. 

The bench noted that the top court in the case of Union of India Vs K V Jankiraman (1991) had held that sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued. 

The court also said that the Ministry of Personnel, Government of India vide OM of November 2, 2012, issued certain clarifications regarding the stage when a prosecution for criminal charge can be said to be pending, keeping in view the dicta laid down in K V Jankiraman case. 

In the instant case, the bench noted that the sanction to prosecute the respondent was granted on June 2, 2006 and the charge sheet was filed by CBI, after completion of investigation on October 25, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on February 22, 2007, wherein the sealed cover procedure was adopted qua the respondent. 

"It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law," the bench said.

The court, therefore, held that the judgment of the high court of April 26, 2013 was based on apropos consideration of facts and law and hence it did not warrant interference.

Since the DPC assessed the respondent to be ‘FIT’ for promotion, the court directed consequential steps in light of the recommendations that should follow.

The court accordingly dismissed the appeal as lacking in merit.

Case Title: Union of India And Ors Vs Doly Loyi