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2009 Supreme(Del) 1058
IN THE HIGH COURT OF DELHI AT NEW DELHI
HONBLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG, JJ.
MAJOR GENERAL A.K. KAPUR, VSM – PETITIONER
Versus
UNION OF INDIA & ORS. – RESPONDENTS
CM 7961/2009 in WP (C) No.6856 of 2008
Decided on : 07.10.2009
Mr. Maninder Singh, Sr.Adv. with Mr. Viraj R. Datar & Mr.Vineet Jhanji, Advocates.
Mr. A.S.Chandihok, ASG with Mr. Sanjeev Sachdeva, Mr. Preet Pal Singh, Ms.S.Mercy Deborah & Ms.Geetika Panwar, Advocates.
The main legal point established in the judgment is that there can be no deemed DV Ban when the policy decision provided for a provisional DV Ban only when the CBI recommends the case for departmental action. The court emphasized the importance of fair consideration for promotion and the need to prevent harassment to an officer by mere pendency of a vigilance case.
Headnote:
DV Ban - Promotion - 04.07.2000 Clause 5(a) - The court concluded that the pre-requisite for a DV Ban is where a competent officer accords approval for prosecution of the affected personnel by the CBI. The stage of CBI making any recommendation had not even arisen even though a period of sixteen months had elapsed since the registration of the FIR. The court emphasized that there can be no deemed ban when the policy decision provided for a provisional DV Ban only when the CBI recommends the case for departmental action. The court also highlighted the importance of fair consideration for promotion and the need to prevent harassment to an officer by mere pendency of a vigilance case.
Fact of the Case:
The petitioner, a Major General in the Army, filed a petition seeking promotion to the rank of Lieutenant General after his promotion was withheld due to an FIR registered by the CBI alleging disproportionate assets. The court found that the petitioner's promotion was denied based on a deemed DV Ban, which was not applicable as the CBI had not recommended departmental action.
Finding of the Court:
The court found that the petitioner's promotion was unjustly denied based on a misinterpretation of the policy decision regarding DV Ban. The court emphasized the importance of fair consideration for promotion and the need to prevent harassment to an officer by mere pendency of a vigilance case.
Issues: The main issue was whether the petitioner's promotion was rightfully denied based on a deemed DV Ban, and whether the ACC's decision was in line with the policy decision and the petitioner's rights.
Ratio Decidendi: The court held that there can be no deemed DV Ban when the policy decision provided for a provisional DV Ban only when the CBI recommends the case for departmental action. The court emphasized the importance of fair consideration for promotion and the need to prevent harassment to an officer by mere pendency of a vigilance case.
Final Decision: The court allowed the petitioner's application, treating him as having been promoted to the post of Lieutenant General with all consequential benefits, and issued a mandamus accordingly. The court also made it clear that the respondents could take subsequent action against the petitioner in accordance with the law.
SANJAY KISHAN KAUL, J.
1. The petitioner joined the Army on 14.11.1971 and earned his promotions up to the rank of a Major General. The petitioner was considered for promotion to the rank of Lieutenant General in the Army Ordnance Corps (AOC) as per a Special Selection Board held on 05.11.2007.
2. The result of this SSB was however withheld for over almost ten months and the petitioner aggrieved by the same filed WP(C) 6856/2008 praying for the de-classification of the results of the SSB with respect to the petitioner and to grant him promotion to the rank of Lieutenant General with all consequential benefits.
3. On consideration of the writ petition and calling for records, it was found that just prior to the SSB , an FIR was registered by the CBI on 08.10.2007 on the basis of sourced information alleging that the petitioner had amassed assets disproportionate to his known sources of income and a raid was also carried out at the premises of the petitioner. The petitioner claimed that nothing incriminating was found and all the properties were either inherited or acquired from sale of properties which had been inherited. The petitioner claimed to be belonging to a landed class having assets and had explained all the queries.
4. The case of the petitioner was directed to be treated as one of a deemed DV Ban and thus was not approved by the Appointments Committee of the Cabinet („ACC for short). The question which thus arose was whether such a deemed DV Ban would apply to the case of the petitioner. The policy decision for imposition of a DV Ban is dated 04.07.2000 and the relevant provision in Clause 5(a) of the policy reads as under:
“5. For imposition of Provisional DV Ban each case is examined by the AGs Branch (DV Dte.) on its merits. Provisional DV Ban is imposed in the under mentioned specific cases:-
a) SPE/CBI Cases (Type „C). When the competent authority accords approval for prosecution of the affected personnel (officers only) by the CBI in civil court, the officer is put under Provisional DV Ban type „C. When the CBI recommends departmental action, the officer will be put under Provisional DV Ban type „D/A/T, as the case may be, after the competent authority has taken cognizance of the offence and directs appropriate action against the officer.”
5. The aforesaid policy was thus examined in the writ petition and it was concluded that the pre-requisite for a DV Ban is where a competent officer accords approval for prosecution of the affected personnel by the CBI. The stage of CBI making any recommendation had not even arisen even though a period of sixteen months had elapsed since the registration of the FIR. It was thus found that the ex facie it was not a case of DV Ban. We also took note of the fact that the SSB had been held after the FIR was registered and yet the SSB in its own wisdom had recommended the case of the petitioner alone for promotion finding nothing adverse in his career profile and finding the other two persons unfit. We found that there could not be any deemed ban as every authority is governed by the law of the land and the norms laid down by itself, so that there is no unfettered discretion in any authority. Thus, once the respondents in their wisdom had framed a policy as to when a DV Ban comes into operation, and that condition not being satisfied, there could not be a bar of DV Ban to the promotion of the petitioner. However, instead of granting the relief of promotion, we considered it appropriate that it was a fit case where the ACC may re-examine the complete matter in terms of what we had observed and take a fresh decision within one month.
6. No decision came to be taken for over three months and ultimately the petitioner filed a contempt petition which was listed on 12.05.2009 and notice was issued returnable on 06.07.2009 giving liberty to the respondents to take a decision in the meantime. The petitioner received a communication dated 10.06.2009 informing
