- (1.) THE vires of the Circulars dated, 4. 1. 77 and 17. 7. 89 issued by the Government in the department of Personnel has been challenged in this writ petition filed under Article 226 of the Constitution of India.
(2.) THE petitioner has prayed for quashing of these circulars and for issue of a direction to the respondents to consider his case for promotion to the post of Superintending Engineer (Civil) Irrigation Department and not to follow the sealed cover procedure as laid down in the aforesaid Circulars dated, 4. 1. 77 and 17. 7. 89. He has also prayed for quashing of the order dated, 31. 3. 91 and 29. 6. 91. Briefly stated, the case of the petitioner is that he joined Government service in Irrigation Department on 17. 7. 61. Subsequently, he was selected by the Rajasthan Public Service Commission for appointment as Assistant Engineer by direct recruitment. He was promoted as Executive Engineer on regular basis by order dated, 13. 11. 75. In the seniority list of Assistant Engineers issued on 11. 6. 74, the name of the petitioner has been shown at serial No. 224. On the recommendations of the Departmental Promotion Committee two orders were issued on 30. 1. 91 and 26. 9. 91 for promotion of officers as Superintending Engineer (Civil) under rule 26 (1) of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 against the promotion quota of 1990-91. According to the petitioner, S/shri R. S. Chouhan, Seniority No. 225, Sohan Lal Manju, Seniority No. 227, R. N. Saxena, Seniority No. 228 and V. K. Jain, seniority No. 229 who have been promoted by these two orders are junior to him. Against his supersession, the petitioner made representation dated, 13th August 1991. He was communicated with the adverse remarks in his Annual Performance Report for the year 1982-83. The petitioner made representation and the same has not been disposed of so far. The petitioner has stated that another D. P. C. was likely to be held for making recommendations for promotions against the year 1991-92 and he apprehended that his case will not be considered fairly. The petitioner has stated that during his 30 years service career neither any regular charge sheet has been served upon him nor any punishment has been imposed upon him. Only a show cause notice dated, 15. 4. 82 was issued to the petitioner and he was called upon to show cause why disciplinary action should not be initiated against him in regard to his alleged lapse in non extension of Bank Guarantee at the time of payment of 17th running bill of M/s K. D. Bankers which was a contracting firm. Another notice to the same effect was issued to the petitioner on 3. 6. 83. The petitioner gave his reply to the notice dated, 20th March 1983 and denied his responsibilities. The petitioner has stated that the allegations levelled against him in the show cause notice dated, 15. 1. 82 relates to the year 1979 when he was posted as Executive Engineer, B & R. C. , Division, Mahi Bajaj Sagar Project, Banswara. According to the petitioner after submission of the reply by him no action has been taken. Of course, a charge-sheet was issued to Shri K. P. Jain, the then Chief Accounts Officer in regard to the non extension of Bank Guarantee, but, the same was subsequently dropped. In fact, the department had not suffered any loss because, when the work done by the contractor was measured before the preparation. of 18th running bill by the successor of the petitioner it was found that measured unpaid work worth Rs. 1 lac had been done. According to the petitioner, he therefore, presumed that no action was going to be taken against him in future. However, he has been deprived promotion on the basis of the Circulars dated, 4. 1. 77 and 17. 7. 89 issued by the Government in exercise of its power under rule 24 A (15) and other similar rules in various other service rules framed under proviso to Article 309 of the Constitution. The notices dated, 15. 4. 82 and 3. 6. 83 have been used by the respondent Government for presuming that an enquiry is contemplated against the petitioner. On that ground sealed cover procedure has been adopted. The petitioner has submitted that two Circulars dated, 4. 1. 77 and 17. 7. 89 by which sealed cover procedure has been made applicable even to the cases in which enquiry is contemplated are ultra vires to the provisions of rule 24a (15) More over, prescription of sealed cover procedure in all cases of contemplated or pending enquiries is by itself arbitrary and unreasonable, because, by such Circular, the discretion of the competent authority is curtailed. It is also the case of the petitioner that on the basis of the notices dated, 15. 4. 82 and 3. 6. 83, which relate to the working of the petitioner during 1979, he cannot be denied promotion on the post of Superintending Engineer. Moreso, when the then Chief Accounts Officer was charge sheeted in respect of the same subject matter and the said charge sheet was subsequently dropped. The facts set out by the petitioner in the writ petition have remained uncontroverted, because, no reply has been filed by the respondents. Rule 24 A (15) of 1954 rules reads as under : "the Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings is under progress, at the time, promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings. " In almost all service rules similar provision can be found. Rule 24 A (15) was in the first instance, inserted in 1954 rules by amendment notification dated, 5. 3. 76, when general amendments were made in the various service rules. By notification dated, 7. 3. 78, Rule 24 A was substituted. Even in the substituted rule 24 A sub-rule 15 was maintained with identical language.
(3.) CIRCULAR dated, 4. 1. 77 was issued by the Government in the department of Personnel under Rule 24 A (15) as it stood by virtue of insertion vide notification dated, 5. 3. 76. The CIRCULAR dated, 17. 7. 89 has been issued in the exercise of the powers under Rule 24 A (15) as it stands now and which has been quoted herein above. Circular dated 4-1-77 Paragraphs 1,2,3,4,5, 10 of the Circular dated 4. 1. 77 and Paragraphs 2. 0, 2. 1, 2. 2, 3. 1, 5. 0, 6. 0 of Circular dated, 17. 7. 89 have necessity to be quoted for the purpose of proper appreciation of the controversy involved in the writ petition. These are : "1. The Government have already amended the various serivce Rules, vide this Department Notification No. F. 10 (1) Karmit Ka-11/75-1 dated, the 5. 03. 1976 provided that Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings are under progress at the time promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings. " The whole matter has been reconsidered by the government and in supersession of all previous orders noted in the margin, the following revised instructions to be adopted in such cases are laid down : No. F. 1 (7) Appts. (A-II)/65, dated, the 18. 09. 1971. No. F. 1 (7) Appts. (A-II)/68, dated, the 1. 04. 1975. No. F. 10 (1) Karmik/ ka-II/75, dated, 4. 12. 1975 Scope of the Instructions : 2. These instructions shall apply to a Government servant (i) who is under suspension (ii) against whom disciplinary proceedings either under rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, have been initiated i. e. where a charge sheet and statement of allegations have been issued under rule 16 and the disciplinary proceedings are pending at any stage or where a statement of allegations under rule 17, has been issued and the proceedings are pending, and (hi) against whom disciplinary proceedings are proposed to be initiated i. e. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against him but where a charge sheet and statement of allegations under rule 16 or a statement of allegations under rule 17 has been issued. Procedure to be followed in cases where a Government servant is under suspension at the time when promotion to higher posts is considered by the Departmental Promotion Committee or by the Appointing Authority, where there is no provision for holding Departmental Promotion Committee. 3.In such a case the Government servants' suitabiuty for promotion should be assessed by the Departmental Promotion Committee or by the Appointing Authority, as the case may be, and a finding reached whether if the officer had not been suspended, he would have been recommended, selected for promotion. The Departmental Promotion Committee or the Appointing Authority as the case may be, should also take a view as to what the Government servant's position in the list of selected persons (select list) would have been but for his suspension. 4.The findings as to the suitability and the place in the select list of the Government servant should be recorded separately and attached to the proceedings of the Departmental Promotion Committee in the sealed envelope superscribed "finding regarding suitability for promotion on the basis of merit/seniority-cum-merit in (Service/grade/post) in respect of Shri (Name of the Officer)" and "not to be opened till after the termination of the suspension of Shri ( Name of the Officer ). " The proceedings of the Departmental Promotion Committee need only contain the note, "the findings are contained in the attached sealed envelope. " Similarly, where there is no provision for holding a Departmental Promotion Committee, the Appointing Authority will record a separate note and observe the procedure given above. The vacancy that could have gone to the Government servant but for his suspension should be filled only on an officiating basis by the next person in the select list. If later, the government servant concerned is completely exonerated and it is held that the suspension was wholly unjustified, he should be promoted to the post filled on an officiating basis, the arrangement made previously being reserved. Where however, the post which could have gone to the officer but for his suspension ceases to exist before his re-instatement he can only be promoted to the first vacancy that may be available in future. In case where a Government servant is not exonerated, the Departmental Promotion Committee or the Appointing Authority, as the case may be, that reconsider the case keeping in view the findings of the disciplinary proceedings and the decision taken thereon. Procedure to be followed in cases where a Government servant is not under suspension when promotions are considered by the Departmental Promotion Committee or by the Appointing Authority where there is no provision for holding Departmental Promotion Committee but disciplinary proceedings are pending or are about to be initiated under rule 16 of the Rajasthan Services (Classification, Control and Appeal) Rules, 1958. 5.Where promotions are to be made on the recommendations of a Departmental Promotion Committee, ordinarily the sealed cover procedure as given in paras 3 and 4 should be followed. In exceptional cases, where the Departmental Promotion Committee after looking into the charge sheet and the statement of allegation feels that the delinquency of the Government servant is of a technical or a minor nature i. e. supervisory negligence in a departmental enquiry or a joint Departmental enquiry etc. the Commitee may, for reasons to be recorded in writing, recommend promotion provisionally till the next meeting of the Departmental Promotion Committee. Where the sealed cover procedure has been followed on conclusion of the disciplinary proceedings if the Government servant concerned is exonerated, the recommendations of the Departmental Promotion Committee in the sealed cover for his promotion shall be implemented and he shall be promoted on a regular basis. Similarly, where a government servant has been promoted provisionally on the basis of the recommendation made by the Departmental Promotion Committee and where the said government servant on conclusion of the disciplinary proceedings has been exonerated, he shall be promoted on a regular basis in respect of a Government servant in whose cases the sealed cover procedure has been followed or who has been promoted provisionally on the basis of the recommendation made by the Departmental Promotion Committee and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall then make suitable recommendations regarding the Government servants promotion or otherwise. Where in the case of a Government servant, the sealed cover procedure as given in para 3 and 4 has been followed for selection by promotion from the post on which he was regularly appointed, to the next higher post and who by virtue of his seniority becomes eligible for promotion to the second next higher post but the Departmental Inquiry has not been concluded by the Disciplinary Authority by the time the meeting of the Departmental Promotion Committee is held, such a person should be considered for promotion to the second next higher post purely on provisional basis by the Departmental Promotion Committee or the Appointing Authority, as the case may be, and the sealed cover procedure as given in para 3 and 4 should be followed in such cases. In respect of a Government servant in whose case the sealed cover procedure has been followed or who has been promoted provisionally on the basis of the re-commendations made by the Departmental Promotion Committee, and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall then make suitable recommendations regarding otherwise. Person not selected by the Departmental Promotion Committee without taking into account the Departmental Enquiry pending against them. " Circular dated 17. 789 2. 0. Cases of Government servants to whom sealed cover procedure will be applicable : ' At the time of consideration of the cases of Government servants for promotion, details of Government servants coming in the zone of consideration for promotion falling under the following categories should be specifically brought into the notice of 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; (iv) - Government servants against whom an investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the A. C. D. or Lok Ayukta or any other agency departmental or otherwise. 2. 1 Procedure to be followed by DPC in respect of Government servants under Cloud: The DPC shall assess the suitability of Government servant coming within the purview of the circumstances mentioned above alongwith other eligible conditions without taking into consideration the disciplinary case or criminal prosecution pending or contemplated against them or where the investigation in progress. The assessment of the DPC including "unfit for promotion" and the place in the select list of the Government servants recorded separately by it will be kept in a sealed cover. The cover will be superscribed "finding regarding suitability for promotion to the post of. . . in respect of Shri. . . (name of the Government servant ). Not to be opened till the termination of the disciplinary case/ criminal prosecution/investigation against Shri. . . . " The proceedings of the D. P. C. 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 the vacancy in the higher grade only in an officiating capacity when the finding of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 2. 2. The same procedure outlined in para 2. 1 above will be followed by the subsequent DPC convened till the disciplinary case/criminal prosecution/investigation pending or contemplated against the Government servant concerned is concluded. 3. 1. Action after completion of disciplinary case/criminal prosecution/investigation : On conclusion of the disciplinary case/criminal prosecution or an investigation which results in dropping of allegation or complaint against the Government servant is completely exonerated,. the recommendations of the DPC shall be implemented. The due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his junior on the basis of such position. The Government servant may be promoted, if necessary by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of junior, but he will not be allowed any arrears of pay for the period preceding the date of actual promotion. 5. 0 Six Monthly Review of "sealed cover" cases : It is necessary to ensure that the disciplinary case/criminal prosecution/investigation instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited, to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher post/grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first DPC which had adjudged his suitability and kept its finding in the sealed cover. Such a review should be done subsequently also every six months. The review should inter-alia, cover to following aspects - (i) The progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion; (ii) Security of the material/evidence collected in the investigation to take a decision as to whether there is a prima facie case for initiating disciplinary action or sanction prosecution against the officer. If as a result of review, the appointing authority comes to a conclusion in respect of cases covered by item (ii) above that there is no case for taking action against the Government servant concerned, the sealed cover may be opened and he may be given his due promotion with reference to the position assigned to him by the DPC. 6.0 Sealed cover applicable to officers coming under cloud before promotion: The Government servant who is recommended for promotion by the DPC 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 circular order will be applicable in his case also. ;