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Promotion to be kept under sealed cover if disciplinary proceedings initiate after departmental recommendations: Delhi High Court

In the sphere of departmental proceedings, if any disciplinary proceedings initiates after the recommendations for promotion has been received then such recommendation should be kept under sealed cover until the proceedings are discharged. The quorum of Rajiv Sahai Endlaw J. and Amit Bansal J. were faced with interdepartmental proceedings lis wherein the junior of the petitioner had been promoted whilst the recommendation for promotion of the petitioner was under sealed cover in Dinesh Singh V Dr. Ajay Bhusan Pandey [W.P.(C) 2852/2021].

Application no.OA No.3604/2015 was filed by the petitioner, an Officer of the Indian Revenue Service (Income Tax), of 1994 Batch, then working as Additional Commissioner of Income Tax, seeking promotion to the grade of Commissioner of Income Tax, with effect from 16th September, 2015, being the date when his immediate junior was promoted. CAT, in the order dated 12th May, 2016, found/observed/held that the petitioner fulfilled all the eligibility conditions for promotion and the Annual Performance Appraisal Reports of the petitioner for relevant years and also met the prescribed benchmark; and that the petitioner was neither facing any criminal case/disciplinary proceedings nor was under suspension. The petitioner had however not been promoted because the respondents had obtained the first stage advice of Central Vigilance Commission for initiation of major penalty proceedings against the petitioner and therefore the case of the petitioner for promotion had been put on hold. On account of no such pending charges there was no ground for withholding promotion of the petitioner. Accordingly, the OA was allowed and the respondents directed to promote the petitioner from the date on which his immediate junior had been promoted

It was the contention of the counsel for the petitioner that the aforesaid order of CAT attained finality with the dismissal on 28th May, 2018 of W.P.(C) No.10543/2017 preferred by the has erred in closing the contempt case and not directing the implementation of its order dated 12th May, 2016 and in not punishing the respondents for contempt thereof.

The court turned its attention to Union of India Vs. Rajiv Ranjan W.P.(C) No.4152/2012 wherein, referring to the OM dated 14th September, wherein it was held that a government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case if any disciplinary charges 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 DPC.

The bench was of the opinion that though the relief ultimately granted in a lis relates back to the date of initiation of the lis. But Courts, in certain situations, have also taken subsequent events since the institution of the lis, into consideration and molded the relief sought. It was further held that if notwithstanding disciplinary proceedings or prosecution having been initiated against a public servant, the public servant is still granted promotion owing to the technicality of having been wrongly denied the same earlier, it will not augur well for the morale of the employees who are public servants and will send a message to the public including public servants, that an employee of doubtful integrity is being rewarded

The judgment rendered by the Court read that “It cannot also be lost sight of, that the respondents, against whom contempt case was initiated and was being pursued, are bound by Clause 7 of OM dated 14th September, 1992 and could not have acted in violation thereof, by, in compliance of order dated 12th May, 2016 of CAT granting promotion to the petitioner, when since the order of CAT, much water had flown and to which eyes could not have been shut.

Thus the view taken by CAT in the impugned order, had a reasonable and lawful view, which did not qualify as perverse, for the Court to interfere therewith in exercise of power of judicial review.

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