2019 (4) TMI 2184 - HC - Indian Laws

Officer ordered considered for promotion to Commandant effective 19 May 2017; DPC to convene by 30 Apr 2019

HEMANT KUMAR SAHU Versus UNION OF INDIA AND ORS.

HC set aside the orders rejecting the petitioner's representations and directed a DPC to be convened by 30 Apr 2019 to consider promotion to Commandant as ... Non-promotion to the post of Commandant along with his juniors whose cases were considered by the Departmental Promotional Committee - whether in anticipation of major penalty proceedings, Petitioner’s case for promotion could have been overlooked by the DPC when it met on 19th May 2017? - HELD THAT:- In Union of India v. K.V. Jankiraman [1991 (8) TMI 292 - SUPREME COURT] the Supreme Court concurred with the view of the Central Administrative Tribunal that: “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.” The Petitioner’s representation against the non-consideration of his case for promotion was rejected by an order dated 28th July 2017 of the DIG (Personal) of the CRPF. A subsequent representation was rejected on 24th August 2017. The Court accordingly sets aside both the above orders and directs that the DPC will be convened not later than 30th April 2019 to consider the case of the Petitioner for promotion to the post of Commandant as of 19th May 2017 and if found fit to be promoted to that post. The DPC will consider the case of the Petitioner for promotion without any reference to the disciplinary proceedings. His seniority in the post of Commandant shall be fixed appropriately above his juniors who were promoted on 14th June 2017. Pay fixation shall also be done likewise. The consequential orders be passed not later than 31st May 2019. Petition allowed. 1. ISSUES PRESENTED AND CONSIDERED Whether a candidate's candidature for promotion may be withheld by a Departmental Promotional Committee (DPC) on the basis that major disciplinary proceedings are in prospect when, as of the date of the DPC, a charge-sheet/ memorandum of articles of charge has not been served. Whether the gravity of alleged misconduct, or the pendency of preliminary investigation leading up to proposed major penalty proceedings, supplies a lawful basis for excluding a candidate from consideration by a DPC in the absence of formal departmental proceedings or suspension. Whether the sealed-cover procedure (or other exceptional procedures) can be applied prior to issuance of a charge-memo/charge-sheet and, relatedly, whether administrative discretion in framing DPC methods can justify non-consideration of a candidate in such circumstances. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Lawfulness of withholding candidature where no charge-sheet has been issued as of the DPC date Legal framework: Promotion decisions by a DPC must follow established principles governing departmental proceedings and promotions; administrative action affecting promotion must respect that formal disciplinary proceedings (charge-sheet/ memorandum of articles of charge) are the triggering event for certain exceptional procedures (e.g., sealed-cover handling). Precedent treatment: The Court follows established authority holding that the sealed-cover procedure and other withholding measures are permissible only after a charge-memo/charge-sheet is actually issued; mere pendency of preliminary investigation, or steps antecedent to formal initiation, are insufficient to justify withholding. Interpretation and reasoning: The decisive date is the date the DPC meets to consider promotion. If, on that date, no charge-sheet has been served and departmental proceedings have not been formally initiated, the DPC lacks lawful basis to overlook the candidate's case solely because disciplinary action is anticipated. Allowing withholding in anticipation would permit indefinite de-facto debarment based on incomplete, sometimes prolonged, preliminary inquiries and would cause injustice where investigations may never culminate in formal charges. Ratio vs. Obiter: Ratio-where departmental proceedings are yet to be initiated (no charge-sheet served) as of the DPC date, the candidature cannot be lawfully overlooked by the DPC on the ground that proceedings are in prospect. Conclusions: The DPC must consider the candidate's case for promotion if no memorandum of charges/charge-sheet has been served as of the DPC date; any non-consideration on that ground is unlawful. Issue 2: Whether the gravity of alleged charges or ongoing preliminary investigation independently justifies non-consideration without formal procedures (suspension/sealed cover) Legal framework: Administrative authorities have remedies where allegations are serious, notably suspension and formally initiated departmental proceedings; these remedies enable exceptional restrictions on service conditions pending inquiry, but they are governed by prescribed rules and criteria. Precedent treatment: The Court adheres to precedent rejecting the proposition that seriousness alone, without formal initiation or suspension, permits withholding promotion; where charges are serious, authorities may suspend the employee, and suspension itself can permit use of the sealed-cover procedure, but the preliminary investigation phase alone does not justify such measures. Interpretation and reasoning: Accepting that mere gravity of allegations and the desire to preserve administrative purity allow non-consideration would sanction arbitrary or indefinite administrative penalization without formal process. The availability of suspension and formal initiation of proceedings prevents such an outcome; thus seriousness of allegations does not displace the rule that formal initiation is required for exceptional treatment of candidature. Ratio vs. Obiter: Ratio-seriousness of allegations, absent formal disciplinary steps (suspension or issuance of charge-sheet), does not furnish lawful grounds for excluding a candidate from promotion consideration. Conclusions: Respondent authorities remain free to continue and conclude disciplinary proceedings and may, where rules permit, suspend the officer; but non-consideration by DPC prior to formal initiation/suspension is impermissible even if charges are grave. Issue 3: Applicability of sealed-cover or other DPC procedural discretions and the relevance of case law on DPC discretion Legal framework: DPCs enjoy procedural discretion to assess suitability and merit, but such discretion is subject to legal limits and must be exercised within the framework of valid rules and precedents governing exceptional procedures (e.g., sealed cover) and fairness to candidates. Precedent treatment: The Court distinguishes authority affirming broad DPC discretion where the factual backdrop did not involve pending or anticipated disciplinary proceedings without formal initiation. Such precedents do not endorse overlooking candidature in the absence of a charge-sheet; discretion does not extend to circumventing the rule that formal initiation is prerequisite to sealed-cover or withholding measures. Interpretation and reasoning: Observations about DPC procedural autonomy do not apply where the only ground for non-consideration is that disciplinary action was 'in the offing' but not yet initiated. The Court emphasizes that prior authorities addressing ACR communication or ordinary DPC methodology are inapposite to the distinct rule requiring formal initiation before exceptional withholding. Ratio vs. Obiter: Ratio-DPC discretion to devise methods of assessment cannot be invoked to justify non-consideration of a candidate where departmental proceedings have not been formally initiated; prior cases on DPC discretion are distinguishable where no similar factual matrix existed. Conclusions: The procedural autonomy of a DPC is constrained by the requirement that formal disciplinary steps must have been initiated (or the officer suspended) before sealed-cover or equivalent non-consideration is lawful; precedents on DPC discretion are to be applied with attention to factual distinctions. Remedial/Consequential Finding Where a candidate's non-consideration for promotion is set aside for the reasons above, the DPC must re-consider the candidature without reference to the pending disciplinary proceedings (if no charge-sheet was served as of the original DPC date). If found fit, promotion and appropriate seniority and pay fixation should be accorded, and disciplinary proceedings may continue independently of promotion.