Go- 2148X Sri Vinay Kumar Singh v. The Union of India and 4 Ors

Judgment & Order The grievance of the petitioner raised in this petition filed under Article 226 of the Constitution of India is with regard to his promotion.

¶2As per the facts projected, the petitioner was serving as a Superintending Engineer (Civil) in the Border Roads Organization (hereinafter BRO). He was deputed to the NHIDCL and in that period there were certain allegations of illegal gratification and the petitioner was repatriated to the BRO. On

01.11.2022, he was placed under suspension. On 20.12.2022, a Departmental Promotion Committee Meeting was held in which the case of the petitioner was considered and was kept in sealed cover. In the inter se seniority list, certain incumbents, who were below the petitioner, were given the benefit of promotion on 17.02.2023. However, no such promotion was given to the petitioner. On

03.02.2023, a review meeting was held on the aspect of suspension of the petitioner wherein it was decided to extend the suspension. On 10.03.2023, the memo of charges was submitted to the petitioner and the disciplinary Page No.# 3/7 proceeding was initiated. The petitioner had filed WP(C)/1074/2023 against the order of suspension. This Court vide an order dated 18.10.2023 had however set aside the order of suspension. The department had preferred WA/448/2023 which was however dismissed on 18.12.2023. The petitioner was thereafter reinstated on 25.01.2024.

¶3As indicated above, the grievance of the petitioner is not giving him the benefit of promotion as the sealed cover proceedings are yet to be opened.

¶4I have heard Shri D. Bora, learned counsel for the petitioner. I have also heard Shri S. K. Medhi, learned C.G.C. and Dr. A. Todi, learned counsel for the UPSC.

¶5Shri D. Bora, the learned counsel for the petitioner has submitted that the order of suspension being interfered with, there is no occasion to have the proceedings of his consideration in a sealed cover. It is submitted that admittedly the incumbents against Serial Nos. 5 and 6 in the inter se seniority list were given the promotion on 17.02.2023 and in the said inter se seniority list, the petitioner was placed against Serial No. 4. He accordingly submits that from the said date on which his juniors were promoted, i.e. 17.02.2023, the petitioner should be given the promotion.

¶6The learned counsel for the petitioner has submitted that the aspect of "sealed cover" has been settled by the Hon'ble Supreme Court in the case of Union of India Vs K. V. Jankiraman reported in AIR 1991 SC 2010. He also submits that in the case of Union of India Vs Anil Kumar Sarkar reported in (2013) 4 SCC 161, the principles laid down in Jankiraman (supra) has been reiterated.

¶7The learned counsel has also submitted that the defense which appears from the affidavit-in-opposition filed by the respondents is based on an Office Page No.# 4/7 Memorandum dated 14.09.1992, more particularly Clause 7 thereof. It is submitted that the said office memorandum would not come into the way for considering the case of the petitioner in view of the judgment passed by the Hon'ble Supreme Court in the case of Anil Kumar Sarkar (supra). He has further submitted that in the disciplinary proceeding, the enquiry report is submitted and as per information gathered, none of the allegations have been found to be proved. He accordingly submits that due interference may be made by directing opening of the sealed cover and considering the case of promotion of the petitioner from 17.02.2023 when his juniors were promoted.

¶8Per contra, Shri S. K. Medhi, the learned CGC has submitted that the petition itself may not be maintainable as the same prayers were made in the earlier writ petition WPC/1074/2023. He submits that even in that case, there was a prayer for directing promotion of the petitioner. The learned CGC has otherwise argued that on 10.03.2023, the memo of charges were submitted and on 25.06.2024, the enquiry report has been given. He submits that the Office Memorandum dated 14.09.1992 is applicable in this case and the conditions laid down in the said Office Memorandum would not justify a prayer for opening the sealed cover when admittedly the disciplinary proceeding is pending.

¶9The rival contentions have been duly considered and the materials placed before this Court have been carefully perused.

¶10The Government of India had issued an Office Memorandum dated

14.09.1992 on the subject of promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation. The said Office Memorandum was issued in view of the judgment dated 27.08.1991 of the Hon'ble Supreme Court passed in the case of Jankiraman (supra). In paragraph 2 of the said Office Memorandum, it has Page No.# 5/7 been stated that at the time of consideration of the cases of Government servants for promotion, the Departmental Promotion Committee is to be informed of three conditions, namely,

¶1Whether the Government servant is under suspension?

¶2Whether there is a charge sheet in respect of the said incumbent and the disciplinary proceeding is pending?

¶3Whether the government servant is facing a prosecution for a criminal charge which is pending?

¶11Paragraph 7 of the said Office Memorandum makes it clear that such a Government servant who is recommended for promotion by the Departmental Promotion Committee, his case will be placed in a sealed cover and would not be promoted until he is completely exonerated of the charges against him.

¶12In the instant case, it is not in dispute that the petitioner was placed under suspension on 01.11.2022 and in the ensuing meeting of the DPC on

20.12.2022, the case of the petitioner was considered and was kept in a sealed cover. It is also not in dispute that on 17.02.2023, two incumbents who were placed below the petitioner in the inter se seniority list were given the benefit of promotion. The suspension of the petitioner was extended vide order dated

03.02.2023 which was the subject matter of challenge in WP(C)/1074/2023.

¶13In the meantime, the memorandum of charges were submitted on

10.03.2023 and the disciplinary proceeding had commenced.

¶14The order of suspension was however, set aside by this Court vide judgment dated 18.10.2023 in the aforesaid WP(C)/1074/2023 which was also affirmed by the Hon'ble Division Bench on 18.12.2023 in WA/448/2023. Page No.# 6/7 Consequently, the petitioner was reinstated on 25.01.2024. It is therefore required to be seen as to whether the aforesaid developments would obviate the impediments laid down in paragraph 2 of the Office Memorandum dated

14.09.1992. Admittedly, the said Office Memorandum is not the subject matter of challenge and in any case the same was issued in terms of the principles laid down by the Hon'ble Supreme Court in the case of Jankiraman (supra).

¶15The mainstay of the petitioner is based on the decision of Anil Kumar Sarkar (supra). A reading of the aforesaid decision would show that as on the relevant date i.e., 21.04.2003, admittedly, the incumbent in that case was not under suspension and there was no departmental proceeding pending. Under those circumstances, the Hon'ble Supreme Court had directed consideration of the case of the incumbent for promotion by negating the submission made on behalf of the Union that it is only after completion of the disciplinary proceeding that such promotion can be considered. The Hon'ble Supreme Court made it clear that on the date of consideration, the incumbent should not be under suspension or no proceeding should be pending or no criminal case should be pending. Such observations are in light of the principles laid down in paragraph 2 of the Office Memorandum dated 14.09.1992.

¶16In the instant case, the promotion to the incumbents who were below the petitioner was done on 17.02.2023. On the said date, the petitioner was under suspension which was affected from 01.11.2022. The suspension was also extended on 03.02.2023 which, however was interfered by this Court vide judgment dated 18.10.2023.

¶17The interference of the order of extension was only on the procedural aspect that the law requires mandatory review of an order of suspension within 90 days if the disciplinary proceeding is not initiated by submission of the memo Page No.# 7/7 of charges. The reinstatement of the petitioner was on 25.01.2024 and admittedly on 10.03.2023, the memorandum of charges was already issued and the records also reveal that the enquiry is completed and the enquiry report is submitted. The same is evident from the communication dated 25.06.2024 which has been annexed to the affidavit-in-opposition.

¶18Under those circumstances, this Court is of the considered opinion that the judgment passed by the Hon'ble Supreme Court in Anil Kumar Sarkar (supra) are on facts which are wholly different from the facts of the present case. This Court is of the opinion that the mandate of the Office Memorandum laid down in paragraph 7 would be applicable and the promotion is not to be made unless the petitioner is completely exonerated of the charges levelled against him.

¶19Under the facts and circumstances aforesaid and the discussions made above, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition is dismissed.

¶20It is however made clear that in the event the petitioner is found to be exonerated in the disciplinary proceeding, his promotion is to be considered and be effective from the date when his juniors were given such promotion. The disciplinary proceeding is also directed to be completed expeditiously and preferably within a period of 2 (two) further months in which the petitioner is directed to render full cooperation.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010081032024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2354/2024o GO-o2148XoSRIoVINAYoKUMARoSINGHo S/O-oLATEoHARIHARoBAHADURoSINGH,oSUPERINTENDINGoENGINEERo (CIVIL)oANDoPRESENTLYoPOSTEDoAToHQoADGBRo(EAST),oJALUKBARI,o LANKESWAR,oGUWAHATI,oASSAM,oPIN-o781014. VERSUSo THEoUNIONoOFoINDIAoANDo4oORSo REPRESENTEDoBYoTHEoDEFENCEoSECRETARY,oMINISTRYoOFoDEFENCE,o 101-A,oSOUTHoBLOCK,oNEWoDELHI-110001. 2:JOINToSECRETARYo(BORDERoROADS) oMINISTRYoOFoDEFENCEo(EARLIERoDESIGNATEDoASoSECRETARYo(BRDB) oROOMoNO.o418 oB-WING o4THoFLOOR oSENAoBHAWAN oNEWoDELHI-110010. 3:DIRECTORoGENERAL oBORDERoROADSoORGANIZATION oSEEMAoSADAKoBHAWAN oRINGoROAD oDELHIoCANTT. oNEWoDELHI-110010. 4:ADDITIONALoDIRECTORoGENERALo(EAST) oBORDERoROADSoORGANIZATIONoHQoADGBRo(EAST) oJALUKBARI oLANKESWAR oGUWAHATI oASSAM oPIN-o781014. Page No.# 2/7 5:UNION PUBLIC SERVICE COMMISSION (UPSC) REPRESENTED BY ITS SECRETARY DHOLPUR HOUSE SHAHJAHAN ROAD NEW DELHI-110069 B E F O R E Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI Advocate for the petitioner : Shri D. Bora, Advocate. Advocate for the respondents : Shri S. K. Medhi, C.G.C. Dr. A. Todi, Advocate UPSC. Date of hearing : 12.08.2024 Date of Judgment : 12.08.2024