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of <h1>Withholding promotions unlawful where s.173 CrPC report not filed; petitioner entitled to Selection Grade, JAG-II, JAG-I promotions with arrears</h1> <h3>A.V. PREM NATH Versus UOI AND ORS</h3> A.V. PREM NATH Versus UOI AND ORS - 2023:DHC:3661 - DB ISSUES PRESENTED AND CONSIDERED 1. Whether the Departmental Promotion Committee (DPC) could lawfully keep the promotion outcome of a government servant in a 'sealed cover' where (at the time of the DPC) sanction for prosecution had been accorded but no charge-sheet had been filed and criminal proceedings had not been judicially instituted. 2. Whether the DoPT OMs governing 'sealed cover' procedure permit denial of vigilance clearance or withholding of promotion where none of the three enumerated conditions (suspension; charge-sheet and pending disciplinary proceedings; prosecution pending after institution of judicial proceedings) are satisfied at the time of consideration. 3. Whether, in the facts presented, the adoption of the 'sealed cover'/deemed sealed cover procedure without the satisfaction of the prescribed conditions was a failure to apply mind and thereby vitiated the decision to withhold promotion. 4. Remedies and consequential relief where it is held that the sealed cover procedure was not legally attracted when promotions were considered. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Lawfulness of keeping DPC outcome in 'sealed cover' where only sanction for prosecution exists but no charge-sheet/ judicial proceedings Legal framework: The applicable administrative instructions are the DoPT OMs (notably those issued on 14.09.1992, 25.10.2004 and 02.11.2012) which prescribe that DPCs be informed of government servants who are (i) under suspension, (ii) charge-sheeted with disciplinary proceedings pending, or (iii) facing prosecution for a criminal charge. The 02.11.2012 OM adopts the definition of when judicial proceedings are instituted from Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972 (i.e., when police report/complaint is such that the Magistrate takes cognizance). Precedent treatment: The Court considered earlier judicial authorities addressing when a government servant is 'under cloud' for promotion purposes, including decisions that have applied or distinguished the sealed cover doctrine. Some precedents have applied sealed cover where disciplinary or prosecutorial steps had reached the stage of charge-sheet or institution; others have been distinguished where those conditions were absent. Interpretation and reasoning: The Court analyses the sequential operation of the OMs and the statutory provision on cognizance, concluding that mere grant of sanction for prosecution does not equate to judicially instituted prosecution. The decisive moment for the doctrine to apply is when criminal proceedings are instituted in the judicial sense-i.e., the police report/charge-sheet under Section 173 Cr.P.C. has been filed and cognizance taken under Section 190 Cr.P.C.-or when the other two conditions (suspension; charge-sheet/disciplinary proceedings) are present. The Court observes that prior to filing of the charge-sheet the matter remained an investigation and therefore none of the three conditions enumerated in the 14.09.1992 OM were satisfied. Ratio vs. Obiter: Ratio - the sealed cover procedure cannot be lawfully invoked on the basis of mere sanction for prosecution where no charge-sheet has been filed and no judicial proceedings have been instituted; invocation requires satisfaction of one of the three conditions in the 14.09.1992 OM as clarified by subsequent OMs. Obiter - observations on administrative best practices such as expediting disciplinary proceedings and option to suspend where charges are serious. Conclusion: The adoption of the sealed cover in circumstances where only sanction(s) existed but no charge-sheet/judicial institution had occurred was legally impermissible. Issue 2 - Scope and application of the DoPT OMs governing sealed cover procedure Legal framework: The Court sets out the relevant OMs chronologically: the 10.04.1989 OM (which included a broader category), the 14.09.1992 OM (which narrowed the categories to three), the 25.10.2004 clarification (noting that mere suspicion or preliminary investigation is insufficient to withhold promotion), and the 02.11.2012 clarification (adopting judicial institution test from pension rules). Precedent treatment: The Court reviews authorities that interpreted these OMs and distinguishes earlier decisions which rested on different or broader circular wording or facts (e.g., where disciplinary proceedings had been initiated or charge-sheets issued). It upholds the principle that the 14.09.1992 OM and its clarifications set the governing standard. Interpretation and reasoning: The Court emphasises that the 14.09.1992 OM limits the circumstances when vigilance clearance may be denied; the 2004 and 2012 clarifications reinforce that promotions cannot be withheld merely on suspicion or preliminary investigation. The 2012 OM's adoption of the Rule 9(6)(b)(i) test provides a clear threshold-judicial institution-necessary for treating prosecution as 'pending' for the purposes of the sealed cover mechanism. Ratio vs. Obiter: Ratio - the three conditions in the 14.09.1992 OM, as clarified, are the exclusive triggers for sealed cover procedure; mere grant of sanction for prosecution without charge-sheeting/judicial institution does not satisfy the OM. Obiter - administrative suggestions in the OMs about suspension and expeditious handling where charges are grave. Conclusion: The sealed cover procedure must be applied only when one of the three specific conditions is present as per the DoPT OMs and their clarifications; otherwise, withholding promotion is not justified under those OMs. Issue 3 - Application of law to the facts and review of exercise of discretion Legal framework: The Court applies the DoPT OMs to the chronological factual matrix: FIR (2002); initial prosecution sanction (19.01.2011); DPC (01.08.2011); subsequent sanction (31.10.2019); charge-sheet filed and judicial proceedings instituted only in 2020. Precedent treatment: The Court distinguishes authorities relied upon by respondents where sealed cover was appropriately adopted because charge-sheets or departmental proceedings were pending or other OM conditions were met at the relevant time. Interpretation and reasoning: The Court finds that at each DPC meeting relevant to the petitioner's promotion eligibility the statutory/OM thresholds for invoking sealed cover did not exist: the petitioner was not under suspension, not charge-sheeted at the time of DPCs, and criminal prosecution had not been judicially instituted. Consequently, respondents' reliance on sealed cover in 2011 (and in later administrative acts prior to charge-sheet) lacked legal foundation and amounted to failure to apply mind to the governing OMs. Ratio vs. Obiter: Ratio - where none of the OM conditions are satisfied at the time of DPC, sealing or withholding promotion is unlawful; failure to consider this is a curse on administrative decision-making requiring corrective relief. Obiter - comments on possible legitimacy of sealed cover after charge-sheet filing. Conclusion: The respondents' decision to treat the petitioner's case as sealed/deemed sealed at the relevant DPC dates was illegal; the decision was vitiated by misapplication of the DoPT instructions. Issue 4 - Relief and consequential directions Legal framework: Where administrative action is found to be unlawful and promotions of juniors/batchmates have been granted, equitable relief includes directing grant of promotion on regular basis from the dates of promotion of eligible juniors/batchmates and payment of arrears and consequential benefits with interest. Interpretation and reasoning: Given the finding that sealed cover procedure was improperly applied, and that the petitioner was eligible in the relevant years, the Court directs opening of the sealed cover(s) and grant of Selection Grade, JAG-II and JAG-I on regular basis from the dates his batchmates and juniors were promoted, with arrears and 9% per annum interest within a fixed timeline. The Court clarifies that respondents remain entitled to invoke sealed cover procedure after the date when charge-sheet was filed and judicial proceedings were instituted, until final outcome of criminal proceedings. Ratio vs. Obiter: Ratio - where unlawful withholding of promotion is demonstrated, retrospective grant of promotion and arrears with interest is appropriate relief. Obiter - procedural guidance on timeline for compliance and reiteration of right to apply sealed cover post-judicial institution. Conclusion: The petitioner is to be promoted to the relevant grades retrospectively from the dates of his batchmates/juniors' promotions and be paid arrears with interest; the respondents retain the right to apply sealed cover after charge-sheet filing and institution of judicial proceedings.
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