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2023 (5) TMI 1453
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.... his batchmates; however, his batchmates were granted JAG-II scale vide notification dated 29.02.2012 but petitioner was not granted the same. 1.2 Feeling aggrieved, he submitted representations to the Cadre Controlling Authority (CCA) and he personally met all the concerned higher officials seeking redressal of his grievances but to no avail. 1.3 It is also mentioned that an FIR was registered way back in the year 2002 on the basis of some anonymous/pseudonymous complaint, which remained at investigation stage. No material was found against the petitioner and closure report was finalised in the year 2014. Consequently, no charge-sheet was filed. The complaint filed anonymously or under pseudonymous names ought not to have been considered; however, the FIR was registered on the complaint in violation of the guidelines of the CVC and the petitioner was falsely implicated in the said case. Inordinate delay of more than 18 years from the date of registration of the FIR has caused grave prejudice and stigma to the petitioner. 1.4 The petitioner's case for promotion was kept pending without any justification under the law and his batchmates were granted JAG-I scale on 13.01.201....
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....ded or he is facing disciplinary proceedings or criminal prosecution. The criminal prosecution can be said to be pending when the police has filed a report under Section 173 Cr.P.C. before the competent Court of Law and there is application of mind by the said court. The petitioner was not facing any disability when his case was considered for Selection Grade on 01.08.2011 and similarly when the case of the batchmates of the petitioner was considered for grant of JAG-II of the grade. The sanction of criminal prosecution was granted on 31.10.2019 and the challan has been filed after order of the Tribunal. As such, the petitioner was not facing any disability on the date of DPC when promotion order of his junior, were passed. This fact was apprised to the CAT during hearing of OA No. 2224/2020. Certain judgments were also relied upon by the petitioner. The said OA was finally heard on 07.01.2021 and it was dismissed on the said date. The petitioner had referred to many judgments and DOP&T instructions on the subject but the Tribunal has ignored the same while dismissing the OA on 07.01.2021. Six Employees junior to the petitioner were promoted on 05.07.2021. 1.9 The grounds on whi....
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....rosc. Selection Grade November 2006 13.11.2006 NA JAG-II November 2011 23.11.2012 NA JAG-I January 2016 13.01.2016 NA 3.1 The genesis of the case is that FIR bearing No. 34/2002 was registered on 12.07.2002 under Section 13 of Prevention of Corruption Act (PoCA) read with Section 214/420/468/471/120B IPC against the present petitioner and others. The allegation was that the petitioner had passed antedated orders in the matter of a land dispute between Gram Sabha and an individual and during inquiry, the said allegation was substantiated; the sanction to prosecute the petition was accorded on 19.01.2011 but till then the Anti-Corruption Branch (ACB) had not completed the investigation and more evidence was being collected and a fresh sanction of prosecution was sought vide letter dated 09.05.2019 and the said sanction was again granted on 31.10.2019. 3.2 Presently, the charge-sheet in the said FIR stands filed and is pending before the Competent Court. The respondents admit that the petitioner was eligible for promotion to the Selection Grade against the vacancy years 2003 to 2007 and the DPC was held on 01.08.2011. Since sanction for prosec....
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.... vs. V. Appalla Raju, (2017) High Court Cases (Del.) 293 the Court has come to the conclusion that sealed cover procedure can be adopted if the prosecution for criminal charge is pending against Government servant. 3.7 On the other hand, the petitioner has relied upon the following judgments:- (i) UOI vs. V Janakiraman & Ors., (1993 ) SCC LRS 387; (ii) UOI & Ors. Vs. Sangram Keshari Nayak, (2007) 6 SCC 704; (iii) UOI & Ors. Vs. Anil Kumar Sarkar, judgment dated 15.03.2013 Civil Appeal No. 2537/2013 3.8 As per the counsel for the petitioner, the Hon'ble Supreme Court in the judgment of Sangram Keshari Nayak (supra) has referred to its earlier judgments in the matter of Delhi Development Authority vs. H.C. Khurana (supra) and Union of India vs. Kewal Kumar (supra) and both these judgments were distinguished by holding that one of the three conditions, as mentioned in OM dated 14.09.1992 must be in existence at the relevant time. This Court has also followed the aforesaid settled legal position while deciding W.P.(C) 4684/2011 titled UOI vs. B.S. Bhola, on 07.11.2012 and while passing judgment dated 10.04.2018 in W.P.(C) 3500/2018 titled Union of India....
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.... case, the said decision, in our opinion, also has no application in the instant case. 19. For the self same reasons, the decision of this Court in Kewal Kumar is also not attracted". 4.2 The relevant circulars (OMs) in this regard are dated 10.04.1989, 14.09.1992, 25.10.2004 and 02.11.2012. The circular dated 10.04.1989 was holding the field till the circular dated 14.09.1992 was issued by DoPT. The relevant portion of OM dated 10.04.1989 are as follows:- "11.1 At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:- (i) Government servants under suspension; (ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; (iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution; and ....
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....the sealed cover". 4.5 Further clarification as to when a criminal charge is stated to be pending, has been made on 02.11.2012. The relevant portion of OM dated 02.11.2012 is as follows:- "8. As regards the stage when prosecution for a criminal charge can be stated to be pending the said O.M. dated 14.9.92 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 is adopted the purpose. The Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 provides as under :- "(b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police officer, of which the Magistrate takes cognizance, is made". (Emphasis supplied) Xxx "12. It may thus be noted that vigilance clearance cannot be denied on the grounds of pending disciplinary/ criminal/ court case against a Government servant, if the three conditions mentioned in para 2 of this Department's O.M. dated 14.09.1992 are not satisfied. The legally tenable and objective procedure in such cases would be to st....