Vigilance Clearance Certificates cannot be withheld based on mere criminal charges unless formal charges are framed, as clarified by the Supreme Court in K.V. Janakiraman's case.

JUDGEMENT

By way of this writ petition, the petitioner has prayed for the following substantive reliefs:-

“i) That the adoption of sealed cover procedure in DPC proceedings dated 25.03.2021 (Annexure P13) may be declared bad in law and consequently the sealed cover with regard to the promotion of the petition may be directed to be opened forthwith and petitioner may be granted promotion as Additional Excise and Taxation Commissioner from due date with all consequential benefits or from the date the same was illegally given to respondent No. 4 with all consequential benefits;

ii) That promotion of respondent No. 4 as Additional Excise and Taxation Commissioner vide order dated 27.03.2021 (Annexure P-14) may be quashed and set aside.

iii) That communication dated 27.10.2017 (Annexure P-20) amending Para 6.4 of the Vigilance Manual of Government of Himachal Pradesh to the extent it goes contrary to the law declared by KV Janakiraman case (AIR 1991 SC 2010) may be quashed and set aside as a whole or in the alternative, principle of severability may be applied qua the offending part by keeping valid part intact;

(iv) That the respondents No. 1 to 3 may be restrained from adding new grounds for resorting to adoption of sealed cover in promotions other than the ground as contemplated in KV Janakiraman Case (AIR 191 SC 2010);”

2. Brief facts necessary for the adjudication of the present petition are as under:-

The petitioner joined the department of Excise and Taxation of the respondent-State as an Excise and Taxation Officer on 05.12.1997. He was promoted to the post of Assistant Excise and Taxation Commissioner on 09.12.2008. Thereafter, he was promoted to the post of Deputy Excise and Taxation, Commissioner on 14.12.2015. He remained posted as Assistant Excise and Taxation Commissioner, Sirmaur at Nahan, from August 2012 to June, 2015. On 03.04.2016, CID Department of the Government of Himachal Pradesh registered an FIR bearing No. 9/2016, under Sections 420 , 468,471,406, 201, 217, 218 and 120-B of the Indian Penal Code and 13(1)(3) and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 , in which, the petitioner was also named, though according to the petitioner, there was no specific allegation leveled against him in the FIR. Copy of the FIR is appended with the petition as Annexure P-1. According to the petitioner, after the Final Report was filed by the prosecution before the learned Trial Court on the basis of said FIR, he made a representation to the Principal Secretary (E&T) to the Government of Himachal Pradesh in terms of Annexure P-2, explaining in detail his stand with respect to the FIR, however, despite this representation of his, vide Annexure P-3, dated 23.09.2019, prosecution sanction was granted by the Principal Secretary concerned against the petitioner in reference to the abovementioned FIR. The petitioner was thereafter promoted to the post of Joint Excise and Taxation Commissioner on 26.10.2019.

3. The next promotional post from the post of Joint Excise and Taxation Commissioner is that of Additional Excise and Taxation Commissioner, which fell vacant w.e.f. 30.09.2020, on account of retirement of Shri Rohit Chauhan. Vide Annexure P-4, dated 07.09.2020, respondent No. 2, sent the integrity certificates of the eligible officers for promotion to the post of Additional Excise and Taxation Commissioner and this included the name of the petitioner. However, in the certificate it was mentioned that a charge-sheet had been issued against the petitioner and disciplinary proceedings were pending against him and further prosecution for criminal charge was pending against the petitioner against whom prosecution sanction stood accorded. As per the petitioner, he was neither facing any disciplinary proceedings as on the date when the integrity certificate was issued nor any charges stood framed against him in the matter. It is further the case of the petitioner that vide letter dated 23.09.2020, respondent No. 1 called upon re