2025 (1) TMI 1605 - HC - Indian Laws

Sealed-cover procedure inapplicable; DPC improperly relied on FIR allegations, order quashes recommendation and directs fresh Review DPC

HC set aside the DPC's decision declaring the petitioner unfit for promotion, holding the sealed-cover procedure was inapplicable and the DPC ... Petitioner declared ‘unfit’ for promotion to the post of Deputy Inspector General (DIG) by the Departmental Promotional Committee (DPC) - conditions for resorting to the sealed cover procedure had not been satisfied in the present case, as no departmental proceedings had been initiated against the petitioner, nor any charge-sheet in the criminal case filed - HELD THAT:- The petitioner had been granted vigilance clearance for being considered by the DPC, convened for filling up the post of DIG (GD) in the CRPF for the anticipated vacancies for the year 2023. In its meeting held on 28.03.2023, the DPC decided to keep its recommendation with respect to the petitioner in a sealed cover. Pursuant to the Order dated 11.09.2024, passed by this Court in NEERAJ KUMAR PANDEY VERSUS UNION OF INDIA AND ORS [2024 (9) TMI 1803 - DELHI HIGH COURT], the said sealed cover was directed to be opened - the submission of the learned counsel for the respondents agreed upon that an employee has no right to promotion but only a right to be considered for promotion. Further, the DPC enjoys full discretion to devise its own method for the objective assessment of the comparative merit of eligible officers. It is also well settled that the High Court, under Article 226 of the Constitution of India, cannot sit in an appeal over the assessment made by the DPC, however, if the assessment made by the DPC is perverse, or not based on the record, or influenced by extraneous circumstances, it is always open to the High Court to remit the matter back to the DPC for reconsideration. In the present case, the DPC, in declaring the petitioner unfit for promotion, has placed reliance on the FIR registered against him. The learned counsel for the petitioner, placing reliance on the Office Memorandum dated 25.10.2004, has submitted that even where the vigilance clearance is rejected to a candidate (though, in the present case, the petitioner had been granted the vigilance clearance) on the ground of the pendency of a disciplinary case or criminal prosecution proceedings, only a bare statement to this regard is to be communicated to the DPC and no other details regarding the pending inquiry or the nature of charges, etc. are to be furnished to the DPC, lest these details weigh with the DPC in making its recommendations. In the facts of the present case, the vigilance clearance had been granted to the petitioner for being considered for promotion. Though the petitioner had been placed in the “Agreed List”, the allegations forming the basis of the FIR against him, should not have been brought to the notice of the DPC, which should have considered the case of the petitioner on the basis of his Annual Confidential Reports, medical condition, and other relevant circumstances. While the DPC could surely have devised its own procedure for an objective assessment of the comparative merit of eligible officers, having placed reliance on the allegations on the basis of which the FIR was registered against the petitioner, it has, taken note of extraneous circumstances which has clouded its decision. The same, therefore, cannot be sustained. The DPC recommendation dated 28.03.2013 qua the petitioner, is hereby set aside. The respondents are directed to convene the Review DPC to assess the suitability of the petitioner for promotion to the post of DIG in the CRPF in accordance with the law within a period of six weeks from today - petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the sealed cover procedure can be resorted to by a Departmental Promotional Committee (DPC) in respect of a candidate when vigilance clearance has been granted and no charge-sheet/charge-memo or departmental charge-memo has been served prior to the DPC meeting. 2. Whether the DPC may be informed of or may take into account the underlying details of an FIR or preliminary investigation (including grave allegations such as disproportionate assets) when the vigilance clearance is granted and the matter has not reached the stage warranting sealed cover treatment. 3. The scope of judicial review over merit and fitness assessments made by a DPC: whether the Court may interfere with an adverse DPC decision and on what grounds (perversity, extraneous consideration, lack of record basis). 4. Appropriate remedy where a DPC decision is vitiated by consideration of prohibited/extraneous material: setting aside the recommendation and directing a review DPC; consequences as to promotion, notional benefits and pay. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Applicability of sealed cover procedure when vigilance clearance is granted and no charge-sheet/charge-memo exists Legal framework: Department of Personnel & Training Office Memoranda (notably dated 14.09.1992 and 25.10.2004) govern when the sealed cover procedure may be invoked; sealed cover is to be resorted to only in circumstances specified in those OMs (e.g., where charge-sheet/charge-memo has been issued or where suspension has occurred), and otherwise only a simple vigilance clearance is to be furnished to the DPC. Precedent Treatment: The Court followed the authoritative principle (as explained in earlier higher court authority) that sealed cover procedure is to be resorted to only after charge-memo/charge-sheet has been issued or other specified situations arise; pendency of preliminary investigation alone is insufficient. Interpretation and reasoning: The OMs and the higher court authority aim to prevent prejudgement of an officer by the DPC on the basis of mere preliminary inquiries; the sealed cover mechanism protects the candidate's right to be considered on merits while permitting administrative precautions where formal charges or suspension justify withholding details. Ratio vs. Obiter: Ratio - sealed cover procedure requires the conditions specified in the OMs (e.g., formal charge-sheet/charge-memo or suspension) and cannot be invoked merely on the basis of preliminary investigation or FIR alone. Obiter - policy observations explaining rationale for the OMs (protecting against prejudgement) reinforce the ratio but are ancillary. Conclusion: Where a vigilance clearance has been granted and no charge-sheet/charge-memo or suspension existed at the time of the DPC, sealed cover procedure was not the appropriate basis to withhold information; the DPC should not treat preliminary investigation or FIR-stage matters as ground for sealed cover treatment. Issue 2 - Permissibility of furnishing underlying FIR details to the DPC and DPC's consideration of such details despite vigilance clearance Legal framework: The 25.10.2004 OM clarifies that where sealed cover procedure is triggered, only a bare statement that a candidate's case falls within the enumerated situations is to be furnished to the DPC; no particulars of the pending inquiry or nature of charges are to be communicated, because such details may improperly influence recommendations. Precedent Treatment: The Court relied on the established administrative instruction and related higher court guidance that DPC assessment must remain uninfluenced by particulars of pending disciplinary/criminal proceedings unless the procedural threshold for sealed cover is met. Interpretation and reasoning: The Court reasoned that furnishing details of an FIR (e.g., alleged disproportionate assets) to the DPC when vigilance clearance was nonetheless granted effectively introduced extraneous material that could cloud comparative merit assessment; that practice would amount to prejudging and punishing an officer without inquiry, violating principles of natural justice and the protective purpose of the OMs. Ratio vs. Obiter: Ratio - details of pending inquiry/criminal allegations must not be furnished to the DPC when the conditions for sealed cover are not met; DPC must assess candidates on APARs, medical category, training, and other relevant service record material. Obiter - discussion of use of FIR consequences for placement in Agreed List or sensitive areas is explanatory of permissible administrative measures but not a basis to influence DPC fitness assessment. Conclusion: The DPC erred in considering the underlying FIR allegations in assessing fitness where vigilance clearance had been given; such consideration constituted reliance on prohibited extraneous material and vitiated the DPC's recommendation. Issue 3 - Scope of judicial review of DPC's assessment and permissible grounds for interference Legal framework: Administrative law principles and constitutional jurisdiction under Article 226 permit limited judicial review of DPC decisions; Courts do not act as appellate tribunals on merit but may intervene where assessment is perverse, unsupported by record, or influenced by extraneous considerations. Precedent Treatment: The Court applied settled principles that while DPCs have broad discretion to devise objective procedures for comparative assessment, their decisions are amenable to judicial review if based on impermissible considerations or not founded on material in the record. Interpretation and reasoning: The Court identified that the DPC's reliance on the FIR details (contrary to OM restrictions) constituted an extraneous consideration that clouded its fitness assessment. Because such influence rendered the decision legally unsustainable, judicial interference was warranted to restore conformity with law and to protect the candidate's rights. Ratio vs. Obiter: Ratio - Court may set aside DPC recommendations that are vitiated by extraneous consideration or lack record basis; mere disagreement with evaluation is insufficient. Obiter - general remarks on DPC discretion and procedure are explanatory. Conclusion: Judicial intervention was justified to set aside the tainted DPC recommendation and to direct a review DPC; this conforms with the narrow but mandatory supervisory role of the Court to correct legal infirmities in promotions processes. Issue 4 - Appropriate remedy where DPC decision is vitiated and consequences as to promotion and benefits Legal framework: Remedies include setting aside the impugned recommendation and directing a fresh or review DPC to reassess suitability in accordance with governing OMs and law; courts may order notional promotion and consequential benefits where appropriate, with pay entitlement only from actual assumption of rank unless law provides otherwise. Precedent Treatment: The Court applied remedial principles consistent with earlier authority and the OMs: annulment of flawed recommendation, direction for review DPC within a stipulated timeframe, and conditional grant of promotion and consequential benefits on notional basis if candidate is found fit on reconsideration. Interpretation and reasoning: Because the DPC's decision was vitiated by consideration of prohibited material, setting aside that recommendation and directing a fresh review protects fairness and restores procedural regularity. Ordering notional promotion and related consequential benefits safeguards the candidate's legitimate expectations vis-à-vis batchmates, while limiting actual pay only to the date of actual assumption reconciles administrative practicality with remedial fairness. Ratio vs. Obiter: Ratio - where a DPC decision is invalidated for legal infirmity, the Court may direct a review DPC and, if appropriate, grant notional promotion and consequential benefits, subject to actual promotion date determining pay. Obiter - the exact measure of step-ahead placement and notional fixation details are case-specific remedial formulations. Conclusion: Appropriate remedy is to set aside the tainted recommendation, direct a review DPC within a prescribed period to assess fitness in accordance with law (without consideration of the prohibited FIR details), and provide that if found fit the candidate be granted promotion with notional consequential benefits from the batch promotion date while pay accrues only from actual assumption of rank.