1. Promotion withheld due to pending vigilance cases — Challenge to denial of notional promotion. (Para 1 , 2 )
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2007 Supreme(SC) 523
SUPREME COURT OF INDIA
S.B. Sinha & Markandey Katju
Coal India Ltd. & Ors- PETITIONER
Versus
Saroj Kumar Mishra- RESPONDENT
Appeal (civil) 1997 of 2007
[Arising out of S.L.P. (C) No. 15805 of 2006]
WITH
CIVIL APPEAL NO.1998/2007 @ S.L.P.(C)No. 16569 of 2006
Decided on 17/04/2007
Promotion cannot be withheld based on a mere pending vigilance enquiry; it requires the competent authority to reach a formal satisfaction that a charge-sheet should be issued or prosecution is warranted, ensuring the constitutional right to be considered for promotion is not arbitrarily restricted.
Headnote:(A) Constitution of India - Article 12 and 16 - Service Law - Promotion - Consideration for promotion - Right to be considered for promotion is a constitutional right under Article 16 - Action of a government company acting as State under Article 12 must satisfy the test of reasonableness and fairness - Right of promotion can be withheld only in terms of valid rules, and restrictions on such a valuable right must be construed strictly.
(B) Vigilance Clearance - Interpretation of office memorandums regarding the withholding of promotion - Vigilance clearance shall not be withheld for the mere fact that a preliminary enquiry is registered or complaints are being looked into departmentally without a conclusion regarding the prima facie guilt of the officer - Clearance can be withheld only when the competent authority, upon consideration of investigation results, forms an opinion that a charge-sheet may be issued on specific imputations or decides to accord sanction for prosecution in court.
(C) Departmental Proceedings - A departmental proceeding is ordinarily considered to be initiated only when a charge-sheet is issued - Pendency of a preliminary enquiry without such satisfaction by the competent authority does not justify keeping the right to be considered for promotion in abeyance.
Facts of the case:
Employees of a government company were denied promotion to a higher grade, which was governed by the rule of seniority-cum-merit, on the ground that vigilance cases were pending against them. Consequently, officers junior to them were promoted. While writ petitions were pending before the High Court, charge sheets were ever issued years later, and a penalty was subsequently imposed. The employer relied on office memorandums to justify the withholding of promotion pending vigilance clearance.
Findings of Court:
The court found that the employer failed to demonstrate that the competent authority had arrived at the requisite satisfaction—as mandated by the applicable office memorandums—that a charge-sheet was likely to be issued or prosecution was warranted at the time the promotion was withheld. The court rejected the "floodgate" argument, stating that a citizen's valuable right cannot be denied to avoid potential litigation.
Issues: Whether the mere pendency of a vigilance enquiry, in the absence of a finding of prima facie guilt or a decision to issue a charge-sheet by the competent authority, is sufficient to withhold vigilance clearance and deny promotion.
Ratio Decidendi: Restrictions on the right to be considered for promotion must be construed strictly. Vigilance clearance cannot be withheld solely because a preliminary enquiry is underway; there must be a formal conclusion by the competent authority that the officer is likely to be charge-sheeted or prosecuted. Until such a conclusion is reached, the officer must be treated at par with others for promotion purposes.
Result: Appeals dismissed with costs.
Judgement Key Points
Yes, the judgment categorically holds that depriving an employee of promotion merely on the basis of a complaint or preliminary investigation, without formal charges or satisfaction of the competent authority that a charge-sheet may be issued, violates service rights, as such deprivation is not permitted under the applicable rules or office memoranda, which must be strictly construed and satisfy constitutional requirements of reasonableness, fairness, and equality. (!) (!) (!) (!) (!) (!) (!) (!) (!)
Legal Category Hierarchy
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administrative law
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government companies
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service conditions
- promotion (Para 2)
- disciplinary proceedings
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service conditions
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government companies
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constitutional law
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equality in public employment
- right to consideration for promotion
- state under article 12 (Para 1)
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equality in public employment
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practice and procedure
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appellate jurisdiction
- civil appeals (Para 1)
-
judicial reasoning
- ratio decidendi
-
appellate jurisdiction
Table of Contents
JUDGMENT:
S.B. SINHA, J.
Leave granted.
These two appeals involving similar questions of law and facts were taken up for hearing together and are being disposed of by this common judgment.
Respondents herein were employees of Mahanadi Coalfields Ltd., a Government Company within the meaning of Section 617 of the Companies Act. Coal India Limited admittedly is the holding company of Mahanadi Coalfields Ltd. Appellant No. 1 framed rules laying down terms and conditions of service of its Executive Officers. The Executive Cadre of the Officers of Appellant No. 1 is divided in various grades namely Gr. E/1 to Gr. E/8. Indisputably, promotion from A/3 to A/4 grades is governed by the rule of Seniority-Cum-Merit. For the purpose of considering the cases for promotion of the eligible officers from Grade E/3 to E/4, a departmental promotion committee held its meeting in April-May, 1999.
Respondents were, however, not promoted inter alia on the premise that the General Manager (Vigilance) of the Mahanadi Coalfields Ltd. intimated to the concerned authority that vigilance cases were pending against them. Orders of promotion were issued in favour of the officers who were admittedly junior to them on 31.8.1999. When despite representation, they were not promoted on the ground of pendency of vigilance cases, they filed writ petitions before the Orissa High Court praying inter-alia for notional promotion with effect from the date their juniors were promoted.
During pendency of the Writ Petitions namely in June, 2002, charge sheets were issued and upon a disciplinary proceeding having been initiated, a penalty of reduction of pay by one stage for a period of one year without cumulative effect was imposed upon the respondents in July, 2003.
Before the Orissa High Court as also before this Court, reliance has been placed by the appellants on office memorandums dated 19/27th June, 1979. Upon taking into consideration the said office memorandum as also subsequent memorandums and in particular the one dated 8.1.1981, the High Court held;
"15. Taking into consideration of the entire factual matrix of the case and keeping in view the ratio decided by the Apex Court in different cases, so far as the present petitioner is concerned, the ratio decided in the case of Union of India Vrs. K.V. Jankiraman and Union of India-Vrs.-Dr.(Smt.) Sudha Salhan has to be followed and since the concerned employees in the cases of Delhi Development Authority-Vrs. H.C. Khurana (AIR 1993 S.C. 1488), Union of India vrs.-Kewal Kumar (AIR 1993 SC 1585) and Union of India vrs- R.S. Sharma (AIR 1993 S.C. 2337) stand on a different footing than the present petitioner, the ratio decided in those cases cannot be followed in the case of the present petitioner. In the case of R.S. Sharma the order of the Tribunal directing to open the sealed cover and giving effect to the recommendation made by the DPC on the ground of non-service of charge memo, was set aside keeping in view the Rules/Circulars/O.M. in force more particularly clause-iv of the O.M. wherein it is provided that during the pendency or "investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise", sealed cover procedure can be resorted to till the proceeding is over in all respect. But in the instant case on the basis of O.M./Circular/Rules followed by the MCL/Coal India, the sealed cover was opened and the petitioner was given promotion to next higher grade (Grade-4) since the so called investigation was not completed within two years from the date the immediate junior to the petitioner was promoted.
This particular office memorandum has been issued may be with the intention to check prolonged enquiry covering a period of more than two years in respect of certain allegations against an employee, so that the concerned employee shall not be harassed or debarred from getting benefit on the recommendation of DPC f
