Dismissed

Union of India Represented by the Secretary v. Oleena C.S

Kerala HC1 Jul 2024OP (CAT)/62/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition filed by the Union of India challenging the Central Administrative Tribunal's direction to promote an employee to Senior Geologist. The court held that vigilance clearance could not be withheld because the officer was not under suspension or facing a chargesheet at the time of promotion recommendation.

What did the court decide?

The Original Petition is dismissed affirming the order of the Central Administrative Tribunal to promote the respondent.

Union of India Represented by the Secretary Vs Oleena… — Service and Employment | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶4

¶5

THE HONOURABLE MR. JUSTICE EASWARAN S.

¶6

MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946

¶7

OP (CAT) NO. 62 OF 2023

¶8

AGAINST THE ORDER DATED 03.03.2023 IN OA NO.180/440/2016 OF

¶9

CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

¶10

PETITIONERS/RESPONDENTS:

¶11

1UNION OF INDIA,
REPRESENTED BY THE SECRETARY
MINISTRY OF MINES,
DEPARTMENT FOR GEOLOGICAL SURVEY OF INDIA,
GOVERNMENT OF INDIA, NEW DELHI, PIN – 100001

¶12

2THE DIRECTOR GENERAL,
GEOLOGICAL SURVEY OF INDIA, CENTRAL HEADQUARTERS 27,
JAWAHARLAL NEHRU ROAD, KOLKATA - 700016.

¶13

3THE DEPUTY DIRECTOR GENERAL,
GEOLOGICAL SURVEY OF INDIA, MANIKANTESWARAM P.O,
GEOLOGIST SURVEY OF INDIA, THIRUVANANTHAPURAM,
KERALA, PIN - 695013

¶14

BY ADVS.
SRI.K.S.PRENJITH KUMAR, CGC

¶15

RESPONDENT/APPLICANT:

¶16

OLEENA C.S.,
AGED 35 YEARS,
W/O RAJEEV KUMAR J, GEOLOGIST,
GEOLOGICAL SURVEY OF INDIA, MANIKANESWARAM P.O,
THIRUVANANTHAPURAM, RESIDING AT PARVATHIMANDIRAM,
ANIYOOR (TEMPLE ROAD), CHEMPAZHANTHY P.O,
THIRUVANANTHAPURAM., PIN – 695587

¶17

BY ADV
SRI.SAJITH KUMAR V.

¶18

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 01.07.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

OP (CAT) NO. 62 OF 2023 -2-

¶20

JUDGMENT

¶21

EASWARAN S., J.

¶22

Respondents before the Central Administrative Tribunal are the petitioners herein. The short point which requires for consideration of ours is as to whether the petitioners are justified in excluding the respondent/applicant for promotion to the post of Senior Geologist.

¶23

Facts required for the disposal of the Original Petition are as follows:

¶24

The applicant entered service as Geologist with effect from 01.11.2010. Later the applicant filed a representation on 21.12.2015 for non inclusion of her name in the final Departmental Promotion Committee (DPC) list. According to the applicant as per the gradation list dated 12.05.2015, many of the juniors of the applicant were promoted. By communication dated 25.01.2016, the applicant was put on notice that she was considered and recommended for DPC held on 03.11.2015 for promotion to the post of Senior Geologist as per the Minutes of the Departmental Promotion Committee.

¶25

OP (CAT) NO. 62 OF 2023

¶26

However, it was pointed out that the said promotion has been withheld because vigilance clearance has not been obtained in the case of the applicant. By representation dated 19.04.2016, the respondent/applicant sought details regarding the vigilance cases which were pending against her. It was informed that there were certain allegations against the respondent/ applicant and which resulted in a minor penalty of withholding of one increment for a period of one year without cumulative effect by order dated 26.04.2016. According to the applicant, the imposition of minor penalty will not have baring on the decision of the Departmental Promotion Committee which found the eligibility of an applicant for promotion.

¶27

The petitioners entered appearance before the Tribunal and filed the reply statement pointing among others that the Vigilance Clearance was not granted because disciplinary proceedings were contemplated against the applicant. According to the petitioners, before the actual promotion took place, the disciplinary proceedings had commenced and therefore the authorities rightly withheld the issuance of the Vigilance Clearance Certificate disentitling the

¶28

OP (CAT) NO. 62 OF 2023 -4-

¶29

respondent/applicant to claim promotion as Senior Geologist. Specific reliance was placed on Annexure-R3 Office Memorandum dated 14.12.2007.

¶30

On consideration of the materials on record and the pleadings, the Central Administrative Tribunal came into conclusion that the applicant was entitled to succeed and hence issued direction to the petitioners to promote the applicant as Senior Geologist.

¶31

Aggrieved by the aforesaid direction, the Union of India and others have approached this Court in the above Original Petition.

¶32

We have heard Sri.K.S.Prenjith Kumar, learned

¶33

Central Government Standing Counsel as well as Mr.Sajithkumar V., learned counsel appearing for the respondent/applicant and have perused the materials on record.

¶34

Sri.K.S.Prenjith Kumar reiterated the submissions which were raised before the Central Administrative Tribunal with specific reference to Annexure-R3 Office Memorandum

¶35

OP (CAT) NO. 62 OF 2023 -5-

¶36

dated 14.12.2007. According to the counsel for the petitioners, though the Departmental Promotion Committee found the respondent to be eligible for promotion to the post of Senior Geologist, the disciplinary proceedings were initiated on 06.12.2015 i.e., before the date on which the respondent was issued with a promotion order. The reasons for rejection of the issuance of the Vigilance Clearance Certificate were specifically mentioned in letter dated 17.12.2015 produced as Ext.R2. He would further point out that going by Clause 2(C) of the Office Memorandum dated 14.12.2007, the Vigilance Clearance Certificate can be withheld on the ground that before issuing orders of promotion, the disciplinary proceedings are initiated. The relevant clause of the Office Memorandum dated 14.12.2007 reads as follows:

¶37

“(c) Vigilance clearance shall not be withheld unless (i) the officer is under suspension (ii) a chargesheet has been issued against the officer in a disciplinary proceeding and the proceeding is pending (iii) orders for instituting disciplinary proceeding against the officer have been issued by the Disciplinary Authority provided that the chargesheet is served within three months from the date of passing such order (iv) chargesheet has been filed in a Court by the Investigating Agency in a criminal case and the case is pending (v) orders for instituting a criminal case against the officer have been issued by the Disciplinary

¶38

OP (CAT) NO. 62 OF 2023 -6-

¶39

Authority provided that the chargesheet is served within three months from the date of initiating proceedings (vi) sanction for investigation or prosecution has been granted by the Competent Authority in a case under the PC Act or any other criminal matter (vii) an FIR has been filed or a case registered by the concerned Department against the officer provided that the charge sheet is served within three months from the date of filing/registering the FIR/case and (viii) The officer is involved in a trap/raid case on charges of corruption and investigation is pending.”

¶40

On the other hand Sri.V.Sajithkumar, learned counsel for the respondent/applicant would contend that Annexure-R3 is not the relevant Office Memorandum which would apply to the present case. He would persuade this Court to look into the Office Memorandum dated 14.09.1992 which according to him, the petitioners themselves have produced it along with a reply statement. He would further point out that the Office Memorandum dated 14.09.1992 was later superseded by yet another Office Memorandum on 02.11.2012. At any rate, according to the learned counsel for the respondent, either going by Annexure-R1 or by the Office Memorandum dated 02.11.2012, the Vigilance Clearance Certificate could not have been withheld in respect of the applicant.

¶41

We have considered the rival submissions raised

¶42

OP (CAT) NO. 62 OF 2023 -7-

¶43

across the bar and perused the memorandum of original petition and the documents annexed to it.

¶44

To appreciate the contention of the learned counsel for the petitioners and the learned counsel appearing for the respondent, it is necessary for us to extract the relevant clauses of Office Memorandum dated 14.09.1992. Clause 2 of the Office Memorandum dated 14.09.1992 reads as follows:

¶45

“…...2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.

¶46

i) Government servants under suspension

¶47

ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

¶48

iii) Government servants in respect of whom prosecution for criminal charge is pending.

¶49

2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed 'Findings regarding suitability for promotion to the grade/post of .......... in respect of Shri...........(name of the Government servant). Not to

¶50

OP (CAT) NO. 62 OF 2023 -8-

¶51

be opened till the terminator of the disciplinary case/criminal prosecution against Shri.......'. The proceeding of the DPC need only contain the note 'The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill thevacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.

¶52

2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent departmental Promotion Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.”

¶53

Clause 7 of the office memorandum also reads as follows:

¶54

“ 7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above 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. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also.”

¶55

The Office Memorandum dated 02.11.2012 lays down comprehensive guidelines for the review of instructions pertaining to the Vigilance Clearance for the promotion. The relevant clauses of the office memorandum dated 02.11.2012

¶56

OP (CAT) NO. 62 OF 2023

¶57

-9-

¶58

reads as follows:

¶59

“….5. The 0.M No. 22012/1/99-Estt. (D) dated 25th October, 2004 further provides that a DPC shall assess the suitability of the Government servant coming within the purview of the circumstances mentioned in para 2 of the Office Memorandum No. 22011/4/91-Estt. (A) dated 14.09.1992, alongwith other eligible candidates, without taking into consideration the disciplirrry case/criminal prosecution pending. No promotion can be with eld merely on the basis of suspicion or doubt or where the matter i under preliminary investigation and has not reached the stage of is ue of charge sheet etc. If in the matter of corruption/dereliction of uty etc., there is a serious complaint and the matter is still under investigation, the Government is within its right to suspend the official. In that case, the officer's case for promotion would automatically be required to be placed in the sealed cover.

¶60

xxxxx

¶61

xxxxx

¶62

For the purpose of vigilance clearance for review DPC, instructions exist in O.M. No. 22011/2 /99-Estt.(A) dated 21.11.2002 that review DPC will take into consideration the circumstances obtaining at the time of original DPC and any subsequent situation arising thereafter will not stand in the way of vigilance clearance for review DPC. However, before the officer is actually promoted it needs to be ensured that he / she is clear from vigilance angle and the provision of para 7 of O.M. No. 22011 / 4 / 91-Estt. (A) dated 14.09.1992 are not attracted.

¶63

Opening of sealed cover on conclusion of proceedings, is covered in the instructions in para 3 of the O.M. dated 14.9.92. In cases where by the time the Departmental Proceedings are concluded and the officer is fully exonerated but another charge sheet has

¶64

OP (CAT) NO. 62 OF 2023 -10-

¶65

been issued, the second charge sheet will not come in the way of opening of sealed cover and granting promotion notionally from the date of promotion of the junior and para 7 of O.M. dated 14.9.92 will not apply as clarified in the O.M. No. 22011/2 / 2002-Estt.(A) dated 24.2.2003. After the disciplinary proceedings are concluded and penalty is imposed, vigilance clearance will not be denied. The details of the penalty imposed are to be conveyed to the DPC.

¶66

xxxxxx

¶67

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 strengthen the administrative vigilance in each Department and to provide for processing the disciplinary cases in a time bound manner. If the charges against a Government servant are grave enough and whom Government does not wish to promote, it is open to the Government to suspend such an officer and expedite the disciplinary proceedings.”

¶68

Having extracted the relevant clauses, the point which requires to be addressed by us is as to whether Annexure-R3 Office Memorandum dated 14.12.2007 would apply or the Office Memorandum dated 14.09.1992 as modified on 02.11.2012 would govern the field. It is pertinent to note that Office Memorandum dated 14.09.1992 was necessitated in view of the judgment of the Supreme Court in Union of India

¶69

OP (CAT) NO. 62 OF 2023 -11-

¶70

Vs. K.V.Jankiraman (AIR 1991 SC 2010) . Clause 2, as extracted above, provides that when a candidate is taken up for consideration before the Departmental Promotion Committee, it should be specifically brought to the notice of the Committee as to whether the employee was under suspension, whether charge sheet has been issued and disciplinary proceedings are pending or whether prosecution for criminal charges are pending. A reading of Clause 7 also shows that there is no bar for a government servant to be considered for promotion despite the restrictions placed under paragraph No.2 as above. In such cases where the Government servant is covered by paragraph No.2 of the Office Memorandum (supra), then, the actual promotion shall not take effect unless exonerated of the charges against him. Now turning to Annexure-R3 it is pertinent to note that certain guidelines were issued regarding the grant of Vigilance Clearance Certificate to the members of Central Civil Service. The instructions were apparently issued by the Department of Personnel and Training which were supposed to act as a reckoner for the grant of Vigilance Clearance Certificate. No doubt under Annexure-R3, it was

¶71

OP (CAT) NO. 62 OF 2023 -12-

¶72

ordered that the Vigilance Clearance Certificate shall not be withheld unless before orders for instituting the disciplinary proceedings against the officer have been issued by the Disciplinary Authority, and the charge sheet is served within three months from the date of the order. During the pendency of the said Office Memorandum, the Department of Personnel and Training came out with yet another Office Memorandum on 02.11.2012 wherein the conditions specified under AnnexureR1 was reiterated. Both the Office Memorandum in the year 1992 and 2012 unequivocally provide for a method of keeping the name of the candidate in a sealed cover.

¶73

We are certain in our view that the office memorandum dated 14.12.2007 can in no way supersede the instructions issued in the Office Memorandum in the year 1992. Even if we are to assume that the Office Memorandum supersedes the earlier one, it was later preceded by yet another Office Memorandum dated 02.11.2012 wherein the so called restrictions placed under the Office Memorandum of 2007 was apparently not included. Therefore, either way, the petitioners are not justified in contending that the case of the

¶74

OP (CAT) NO. 62 OF 2023 -13-

¶75

respondent/applicant could not have been taken for promotion. It is also pertinent to note that the proceedings against the respondent/applicant culminated in finding of guilt on 26.04.2016 and an increment for one year without cumulative effect was issued. Apparently, the said punishment was only a minor punishment.

¶76

At this point of time the learned counsel for the petitioners pointed out that the petitioners have already taken fresh proceedings for misconduct which is more serious. However, we are not called upon to judge the validity of those proceedings because the same was not an issue before the Central Administrative Tribunal.

¶77

In Union of India and Others Vs. Anil Kumar Sarkar (2013 (4) SCC 161) the Supreme Court had an occasion to consider the Office Memorandum dated 14.09.1992 especially Clause 2. In paragraph No.14 of the aforesaid judgment, the Supreme Court held as follows:

¶78

“14. As per Para 2 of the said memorandum, at the time of consideration of the government servants for promotion, the following details of government servants

¶79

OP (CAT) NO. 62 OF 2023

¶80

 -14-

¶81

in the consideration zone for promotion falling in the categories mentioned should be specifically brought to the notice of the DPC viz. (i) Government servant is under suspension; (ii) Government servant has been served with a charge-sheet and the disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC has to apply the "sealed cover process". In the case on hand, it is not in dispute that the relevant date is 21-4-2003, when the respondent's batchmates were promoted, admittedly on that date the respondent was not under suspension, no charge-sheet was served upon him nor was he facing any 9 criminal prosecution. In such circumstances, in terms of Para 2 referred to above, the recommendation of the DPC has to be honoured and there is no question of applying "sealed cover process".”

¶82

The reading of the judgment in Anil Kumar Sarkar (supra) would show that the Supreme Court has envisaged three conditions specifically as per Clause 2 of the Office Memorandum dated 14.09.1992. Admittedly, the respondent was neither suspended nor charge sheeted or was facing any criminal prosecution at a time when the Departmental Promotion Committee found or eligible for promotion. It is pertinent to note that the Apex Court in Anilkumar Sarkar (Supra) specifically rejected the contention of the Union of India that though paragraph No.2 of the Office Memorandum

¶83

OP (CAT) NO. 62 OF 2023 -15-

¶84

referred to above did not apply, in such cases sealed cover procedure ought to have been followed.

¶85

As pointed out by the learned counsel for the petitioners admittedly both the disciplinary proceedings have ended in a punishment against the respondent. The period of penalty is admittedly over. However, the learned counsel for the petitioners further pointed out that the respondent was not promoted for the subsequent years in the post of Senior Geologist apparently because of the subsequent proceedings against her. However, we are of the considered view that the subsequent proceedings on the respondent will have no effect whatsoever since the respondent/applicant had already been found eligible for promotion to the post of Senior Geologist and we are only called upon to judge the sustainability of the order passed by the Central Administrative Tribunal.

¶86

In the result, we find that the order of the Tribunal does suffer from any legal infirmity or jurisdictional error. Accordingly, the Original Petition is dismissed affirming the order of the Central Administrative Tribunal, however reserving the right of the petitioners to proceed on the basis of

¶87

OP (CAT) NO. 62 OF 2023 -16-

¶88

the subsequent disciplinary proceedings subject to the right of the parties.

¶89

Sd/-

¶90

AMIT RAWAL
JUDGE

¶91

 Sd/-

¶92

EASWARAN S.
JUDGE

¶93

vv

¶94

OP (CAT) NO. 62 OF 2023 -17-

¶95

APPENDIX OF OP (CAT) 62/2023

¶96

PETITIONER ANNEXURES

¶97

ANNEXURE A1TRUECOPYOFTHEORDERNO.
__/A-32013/SR.GEOL./2015-16/19ADATED
17.12.2015 ISSUED BY THE 1ST RESPONDENT
ANNEXURE A4TRUECOPYOFTHEORDERNO.
1973/A.19011/1/2015(C.S.O)DATED
18.01.2016 ISSUED FROM OFFICE OF THE 2ND
RESPONDENT FORWARDED TO THE APPLICANT
DATED 25.01.2016
ANNEXURE A2TRUE COPY OF THE REPRESENTATION DATED
21.12.2015 SUBMITTED BY THE APPLICANT TO
THE 2ND RESPONDENT
ANNEXURE A3TRUE COPY OF THE GRADATION LIST AS
GEOLOGIST AS ON 12.05.2015
ANNEXURE A5RUE COPY OF THE REPRESENTATION DATED
19.04.2016 SUBMITTED BY THE APPLICANT TO
THE 2ND RESPONDENT IN OA
ANNEXURE A6TRUE COPY OF THE RELEVANT PAGES IF
RECRUITMENT RULES DATED 29.09.2010
ANNEXURE A7TRUE COPY OF THE CHARGE SHEET DATED
30.12.2015 ISSUED BY THE 2ND RESPONDENT
ANNEXURE A8TRUE COPY OF THE ORDER NO. 9690/C-
13013/590/OLS/ADMIN.VIG.2016DATED
26.04.2016 ISSUED BY THE 2ND RESPONDENT
ANNEXURE R1TRUE COPY OF DOPT OM NO. 22011/4/91-
ESTT(A) DATED 14.09.92
ANNEXURE R2TRUE COPY OF THE LETTER NO. 29731 C-
13013/103/V. CLEARANCE/ADMN.VIG. /2010
DATED17.12.2015OBTAINEDFROM
ADMINISTRATIVE VIGILANCE SECTION
ANNEXURE R3TRUE COPY OF DOPT OM NO. 11012/11/2007-
EXTT(A) DATED 14.12.2007

¶98

OP (CAT) NO. 62 OF 2023 -18-

¶99

`ANNEXURE R4`	`TRUE COPY OF THE`	`ORDER DATED 26.04.2016`
`ANNEXURE R5`	`TRUE COPY OF O` `DATED 20.10.2016`	`RDER F NO. 914/2016-MII`
`EXHIBIT P1`	`TRUE COPY OF THE` `THE RESPONDENT` `ERNAKULAM BENCH`	`OA NO. 440/2016 FILED BY` `BEFORE THE HON'BLE CAT`
`EXHIBIT P2`	`TRUE COPY OF THE` `THE PETITIONERS` `ERNAKULAM BENCH I`	`REPLY STATEMENT FILED BY` `HEREIN BEFORE THE CAT,` `N OA NO. 440/2016`
`EXHIBIT P3`	`TRUE COPY OF` `17.10.2016 FILED`	`THE REJOINDER DATED` `BY THE RESPONDENT HEREIN`
`EXHIBIT P4`	`TRUE COPY OF` `STATEMENT DATED` `PETITIONERS HEREI`	`THE ADDITIONAL REPLY` `16.01.2017 FILED BY THE` `N`
`EXHIBIT P5`	`A TRUE COPY OF T` `IN OA NO.440 OF` `ERNAKULAM BENCH`	`HE ORDER DATED 03.03.2023` `2016 OF THE HON'BLE CAT,`

Union of India Represented by the Secretary v. Oleena C.S

Case brief

What is this about?

What did the court decide?

Union of India Represented by the Secretary v. Oleena C.S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Satheesh Raj Pillai, Vs Union of India

Poyil Raju Vs Angadiprath Devi

Maraam Veettil Vinu Kumar Vs Angadiprath Devi

K S Soman Vs Mohan Babu

Selvaraj Vs Unnikrishnan

Union of India Vs P. Venu