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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11231-11232 OF 2016

HARSH KUMAR SHARMA, IFS .....APPELLANT(S)

VERSUS

STATE OF PUNJAB & ANR. .....RESPONDENT(S)

W I T H

CONTEMPT PETITION (CIVIL) NOS. 788-789 OF 2016 IN  

SLP (CIVIL) NO. 24338-24339 OF 2014

J U D G M E N T

A.K. SIKRI, J.

In  these  appeals,  challenge  is  laid  by  the  appellant  to  the

judgment dated 05.05.2014 of the High Court vide which writ petition of

the  respondent/State  of  Punjab  is  allowed  and  order  of  the  Central

Administrative Tribunal (CAT) has been set aside.  The appellant herein

had filed  Original  Application  under  Section  19  of  the  Administrative

Tribunals Act, 1985 before the Chandigarh Bench of the CAT for certain

reliefs.  The result of the Departmental Promotional Committee (DPC),

after considering the case of the appellant for promotion, has been kept

in a sealed cover by the DPC.  Main relief sought for by the appellant

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was for opening of the sealed cover and giving effect thereto, with other

consequential reliefs.  The Tribunal had allowed the OA of the appellant

thereby granting the said prayer.  The High Court has, vide impugned

judgment, reversed the order of the CAT.

2. It  may  be  stated  at  this  stage  that  the  appellant  is  facing  criminal

prosecution under the provisions of Prevention of Corruption Act, 1988

(for short 'PC Act').  The issue, therefore, resolves around these criminal

proceedings, namely, whether that could form the basis of keeping the

result of the DPC in sealed cover.  According to the appellant, having

regard to  the guidelines for  resorting to  the sealed cover  procedure,

stage was not ripe for this purpose as, as on the date on which the DPC

was held, there was neither any chargesheet against the appellant nor

any charges framed in  the criminal  case.   The respondents  claimed

otherwise as, according to them, matter had already been entrusted to

CBI  for  carrying  out  the  investigation  into  the  allegations  of  acts  of

corruption on the part of the appellant and even the investigation was

complete  and  report  under  Section  173  of  the  Code  of  Criminal

Procedure,  1973  (Cr.P.C.)  had  been  submitted  by  the  CBI  to  the

competent court.  Since the report under Section 173 of the Cr.P.C. was

filed before the first meeting of the DPC which was held, it was argued

that the sealed cover procedure had been rightly adopted.

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3. Few facts which are relevant in order to appreciate the rival contentions

and decide  the  issue  need a  mention  at  this  stage.   We,  therefore,

proceed to take note of those facts.

4. The appellant joined Indian Forest Service in the year 1985 and after

undergoing the requisite training, he was allocated to Punjab cadre.  He

was given senior scale on 01.04.1989 and was promoted to the rank of

Conservator  of  Forests  vide  order  dated  15.03.2001,  but  from  an

anterior date.  While working in that capacity, the appellant was directed

to hold an inquiry into the running of Golf Course in reserved forest area,

which was being run by Forest Hill Resort whose owner was one Lt. Col.

(Retd.) B.S. Sandhu.  The appellant conducted the said inquiry, namely,

whether  it  was a forest  land or  not  and on other  issues which were

referred to him.

5. In a public interest litigation bearing CWP No. 1134 of 2004 titled 'Court

on its own motion v.  Col. B.S. Sandhu and others',  the High Court of

Punjab and Haryana passed an order for  demolition of  the said Golf

Course after finding that it was constructed in the reserved forest area.

At  the  same time,  the  matter  was  also  entrusted  to  the  CBI  with  a

direction to fix accountability.  The High Court had adversely commented

upon the conduct of the appellant as well observing that while inquiring

into  the  matter  which  was  entrusted  to  him,  he  had  submitted  two

dramatically  opposed  reports  inasmuch  as  in  the  first  report,  the

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wrong-doers were indicted, whereas in the second report, the appellant

had exonerated them.  In pursuance of these directions, FIR was lodged

by the CBI on 07.04.2006 in which the appellant was also arrayed.  The

CBI  conducted the investigation and as per  its  report,  certain  Forest

Officers and one I.A.S. Officer entered into a criminal conspiracy with Lt.

Col. (Retd.) B.S. Sandhu and his associate Rajiv Bajaj thereby causing

undue favour to Sandhu who, taking advantage of the same, developed

and established Forest Hill  Resort in violation of various provisions of

Indian  Forest  Act,  1927,  Punjab  Land  Preservation  Act,  1900  and

various other Acts.  It is significant to mention that the appellant does not

figure in the list of those Forest Officers who had allegedly colluded with

Sandhu.  Against him, the allegation is of submitting two contradictory

reports thereby trying to shield the said wrong-doers.   

6. The events which are relevant for the purposes of this case from, the

stage of filing of the FIR till the filing of the chargesheet in the Court and

the holding of DPC, are as under:

07.04.2006 : CBI filed the FIR. 05.07.2006 : The appellant moves the case for quashing of FIR. 10.08.2006 : Government  of  India  delists  this  land  from  the

category of forests. 17.08.2006 : State Government admits that the above said lands

were erroneously recorded as forests. 27.10.2006 : The appellant moves quashing petition vide number

45437 M of 2006. 27.11.2006 : The appellant moves application for the amendment

of quashing petition 73577 of 2006, which is allowed.

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22.02.2007 : The appellant gets non functional grade in the pay scale  of  Chief  Conservator  of  Forests  (CCF)  after scrutiny of records in 2011 from the back date.

14.07.2008 : The appellant files a case of defamation against Shri R.K.  Bajaj  in  the  JMIC  Court  and  case  of  civil defamation before the Civil Judge.  Shri R.K. Bajaj on being summoned on oath gives an affidavit that the  appellant  never  demanded  any  bribe.  He  is further charged by the court for the crime.   

16.04.2009 : Petition  of  the  appellant  for  quashing  of  the  FIR dismissed by the High Court .

12.01.2012 : Challenging the aforesaid order of the High  Court, appellant  filed  SLP  (Criminal)  No.  7647  of  2009 which is still pending in this Court.   

It  may  be  mentioned  that  during  the  pendency  of  this  petition, Government of India initially took the view that the sanction to prosecute the appellant be withdrawn and letters were written to the State Government to this effect.  Without stating in detail the events in this behalf, suffice is to mention that recently decision is  taken  in  consolidation  with  the  State  Government  not  to withdraw the  sanction.   In  SLP (Criminal)  No.  7647  of  2009, directions are given by this Court on 22.11.2006 to the Central Government  to  produce  the  relevant  records  to  show  the circumstances necessitating the change of opinion.

29.03.2011 : Post of Chief Conservator Forest became available on the  retirement  of  one Mr. Swaran Singh.   The appellant was eligible to be considered for promotion against the said post, as per his seniority.

09.12.2008 : Report  under  Section  173 of  Cr.P.C.  submitted  by CBI.

29.03.2011 : Meeting  of  DPC  held  wherein  the  case  of  the appellant  for  the post  of  Chief  Conservator  Officer was considered and the result is kept in the sealed cover.

7. Feeling  aggrieved  by  the  adoption  of  sealed  cover  procedure,  the

appellant filed OA No.549 of 2013 in CAT, which has been allowed by

the CAT on 11.11.2013.  Against that judgment, State of Punjab filed writ

petition in the High Court, which was allowed by the High Court vide

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impugned judgment dated 05.05.2014 thereby setting aside the order of

the CAT.  The appellant preferred review petition seeking review of the

order dated 05.05.2014, which stood dismissed on 10.07.2014, leading

to the filing of the special leave petitions by the appellant out of which

the present appeals arise for our decision.

8. The appellant, who appeared in-person, drew our attention to some of

the subsequent events which may be noticed at this stage.

9. To recapitulate, FIR No. RC CHG 2006 A0013 was registered against

the appellant and two IAS Officers and one IFS Officer on the direction

of  the  Punjab  and  Haryana  High  Court  in  Public  Interest  Litigation

bearing  CWP No.  1134  of  2004.   The  main  issue  was that  Lt.  Col.

(Retd.)  Sandhu had constructed a  golf  course in  the reserved forest

area.  However, the said order of the High Court was set aside by this

Court and the Court remanded the case back to the High Court.  The

High Court  has now given the findings that  40 per cent of  the lands

owned by Col. Sandhu, who had made the golf course, was agricultural

land.  The demarcation was going on.  Meanwhile, the Government of

India  and  the  State  Government  have  delisted  the  area  from  the

category of forests.  It is, therefore, no longer the forest area.

10. On the basis of the aforesaid development, the appellant submitted that

the CBI case registered against two IAS and two IFS Officers for golf

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course in  the so-called forest  area could not  proceed.   The Court  of

Special  Judge,  CBI  refused to take cognizance against  the appellant

because of the stay of the trial by the High Court as the appellant had

approached the High Court for quashing of the proceedings against him.

However, this Court has passed the order that the High Court had to first

determine whether the area in question is forest or not.  Since it is no

more  considered  a  forest  area,  nothing  survives.   On  merits,  it  is

submitted  that  the  State  has  accepted  the  fact  that  the  vacancy  for

promotion arose on 30.09.2008 and prosecution sanction was given on

16.12.2008 by Government of India in the present case.  So, on the date

of the availability of the vacancy, no prosecution sanction/prosecution

was pending against the appellant.  It  is further argued that the DPC

ignored  the  Government  of  India's  instructions  that  without  issuing

chargesheet, no promotion can be stopped.  It further promoted two IFS

Officers,  viz.  Mr. Dhirender  Singh and Mr. H.S.  Gujral,  who are/were

facing prosecution in the court of law.  Rather, two IAS Officers involved

in the present case, viz. Mr. S.C. Aggarwal and Mr. K.B.S. Sidhu, were

promoted.  Example of one Mandip Singh, IAS of Punjab cadre is also

given stating that he was promoted in spite of the fact he was under

departmental  chargesheet  and  his  prosecution  in  the  court  was  in

progress wherein charges were framed against him.   

11. The appellant has placed strong reliance on Union of India and others

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v.  K.V. Jankiraman and others1 wherein  it  is  held  that  till  the  time

chargesheet is issued by the Department or the Court framed charges in

the criminal  case,  promotion cannot  be stopped.   Many other  cases,

where ratio of K.V. Jankiraman's case is reiterated, are also referred to

by the appellant.   

12. It  is  also argued by the appellant  that  as per  Government  of  India's

instructions issued in the years 1992, 2000, 2001, 2003, 2004, 2012 and

2014, no case can be kept in a sealed cover without chargesheeting the

employee or court framing the charges.  Moreover, every sealed cover

has  to  be  reviewed  in  three  months  and  no  sealed  cover  can  be

operative  after  two  years,  as  per  appended  Government  of  India's

instructions.  It is, thus, argued that in any case sealed cover had to be

opened  in  the  absence  of  any  such  review  undertaken  by  the

respondents.   

13. Learned counsel for the respondents, on the other hand, supported the

reasons  given  by  the  High  Court  in  the  impugned  judgment  and

submitted that  the subsequent  developments  are of  no consequence

inasmuch as the fate of the appellant's case does not depend upon the

issue  as  to  whether  the  area  in  question,  where  golf  club  was

constructed,  was  forest  area  or  not.   It  was  pointed  out  that  the

1

(1991) 4 SCC 109

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allegations against the appellant are altogether different, namely, when

he was asked to inquire into the matter, he gave two conflicting and

diametrically opposite reports and in the second report which was given

by the appellant, in favour of Col. Sandhu, undue favour was shown to

him.  He further submitted that  the sealed cover procedure could be

adopted  when  the  DPC  meeting  was  held  at  a  time  when  the

chargesheet had already been submitted.

14. Office  Memorandum  dated  14.09.1992  lays  down  the  circumstances

under  which  the  assessment  done by  the  DPC is  to  be  kept  in  the

sealed cover.  Three such circumstances which are given are stipulated

in para 2 of the said O.M., which reads as under:

“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.

(i) Government servants under suspension. (ii) Government  servants  in  respect  of  whom  a chargesheet  has  been  issued  and  the  disciplinary proceedings are pending; and  (iii) Government  servants  in  respect  of  whom prosecution for criminal charge is pending.

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

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promotion to the grade/post of …............ in respect of Shri …...... (name of the Government servant).  Not to 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  the  vacancy  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.

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.”

15. It  would also be fruitful  to quote para 7 of the O.M.,  which reads as

under:

“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.”

16. The employee in respect of whom chargesheet has been issued and the

disciplinary proceedings are pending or in respect of whom prosecution

for criminal charge is pending, his assessment is to be kept in a sealed

cover  and is  not  to  be given effect  to.   The question is  as  to when

prosecution for criminal charge is treated to have been 'pending'.  This

aspect came up for consideration in  K.V. Jankiraman's  case and the

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Court held that sealed cover procedure is to be resorted to only after the

charge  memo/chargesheet  is  issued,  as  is  clear  from  the  following

passage in para 16 of the judgment:

“16.   On the  first  question,  viz.,  as  to  when  for  the purposes  of  the  sealed  cover  procedure  the disciplinary/criminal  proceedings can be said to have commenced, the Full  Bench of  the Tribunal has held that  it  is  only  when a charge-memo in a disciplinary proceedings  or  a  charge-sheet  in  a  criminal prosecution is issued to the employee that  it  can be said  that  the  departmental  proceedings/criminal prosecution  is  initiated  against  the  employee.  The sealed cover procedure is to be resorted to only after the  charge-memo/charge-sheet  is  issued.  The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the  learned  counsel  for  the  appellant-authorities  that when there are serious allegations and it takes time to collect  necessary  evidence  to  prepare  and  issue charge-memo/charge-sheet,  it  would  not  be  in  the interest  of  the  purity  of  administration  to  reward  the employee with  a  promotion,  increment  etc.  does  not impress us.  The acceptance of  this contention would result in injustice to the employees in many cases. As has  been  the  experience  so  far,  the  preliminary investigations  take  an  inordinately  long  time  and particularly when they are initiated at  the instance of the  interested  persons,  they  are  kept  pending deliberately. Many times they never result in the issue of  any  charge-memo/charge-sheet.  If  the  allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power  to suspend the employee under  the relevant rules, and the suspension by itself permits a resort  to the sealed cover procedure. The authorities thus are not without a remedy...”

17. In view of the aforesaid law laid down by this Court, the crucial aspect is

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as to whether the prosecution for criminal charge was pending against

the appellant when the DPC meeting was held.  In K.V. Jankiraman's

case, this Court gave imprimatur to the order of the CAT holding that if

the chargesheet is filed in a criminal court, sealed cover procedure can

be resorted to.  This was conclusion No.4 of the CAT judgment, which

was upheld by this Court, and this conclusion reads as under:  

“(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;”

18. In the present case, chargesheet was filed by the CBI, after completion

of the investigation, on 09.12.2008 and the meeting of the DPC was held

thereafter i.e. on 29.03.2011.

19. In  order  to  overcome the  aforesaid  hindrance  coming  in  the  way of

appellant, he submitted that the date of reckoning should be the date on

which the vacancy occurred and not the date on which the DPC was

held.  This argument cannot be countenanced having regard to the law

laid  down  by  this  Court  in  Arindam  Chattopadhyay  and  others  v.

State of West Bengal and others2 and P. Grover v. State of Haryana3.

20. Therefore, move on the part of the DPC to resort to the sealed cover

procedure is justified.  We may record at this stage that the aforesaid

position contained in O.M. dated 14.09.1992 in respect of sealed cover 2 (2013) 4 SCC 152 3 (1983) 4 SCC 291

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procedure has been repeated in subsequent office memoranda.  Vide

O.M. dated 02.11.2012, the Ministry of Personnel, Government of India

had issued certain clarification keeping in view the dicta laid down in

K.V. Jankiraman's case.  After quoting the three circumstances stated

in  O.M.  dated  14.09.1992,  wherein  sealed  cover  procedure  can  be

followed, para 6 of the O.M. states as under:

“6.  When a Government servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in Departmental Proceedings and or  prosecution  of  criminal  charges  followed  by  either penal/conviction  or  exoneration/acquittal.   During  the stage of  investigation prior  to  issue of  chargesheet  in disciplinary  proceedings  or  prosecution,  if  the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover.  The sealed  cover  procedure  is  to  be  resorted  to  only after the charge memo/chargesheet is issued or the officer is placed under suspension.  The pendency of preliminary investigation prior to that stage is not adopt the sealed cover procedure.

(emphasis supplied)”

21. In para 7, it is clarified that even after recommendation of the DPC, but

before appointment of the officer, if any of the three situations arise, the

case is deemed to be kept in sealed cover by virtue of para 7 of O.M.

dated 14.09.19924.

22. This  O.M.  further  clarifies  the  stage  when prosecution  for  a  criminal

charge can be stated to be pending as this was not specified in O.M.

dated 14.09.1992.  Reference in this para is made to Rule 9(6)(b)(i) of

4 Para 7 of O.M. dated 14.09.1992 came up for interpretation in Union of India and another v. R.S. Sharma,  (2000) 4 SCC 394, giving effect to the aforesaid provision.  

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Central  Civil  Services  (Pension)  Rules,  1972  which  provides  that

criminal  charge  would  be  treated  as pending in  the  case of  criminal

proceedings, on the date on which the complaint or a report of police

officer, on which Magistrate takes cognizance, is made.  It, thus, makes

it  clear that the date on which report of police is made would be the

relevant date.   

23. We, thus, do not find fault with the action of the respondents in keeping

the result of the DPC in sealed cover.   

24. While it may be so, other contention of the appellant regarding review of

his case has adequate merit.  O.M. dated 14.09.1992 as well as other

O.Ms.  impress  the  necessity  of  ensuring  that  the  disciplinary

case/criminal prosecution 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  is  further  provided  that  the  appointing  authorities  should  review

comprehensively the cases of Government servants, whose suitability

for promotion to a higher grade has been kept in a sealed cover.  Such

review should be undertaken on the expiry of 6 months from the date of

convening the first DPC which had adjudged the suitability and kept the

findings in sealed cover.  This review is also to be done subsequently as

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well, after every six months. It is also mandated that the review should,

inter  alia,  cover  the  progress  made  in  the  disciplinary

proceedings/criminal  prosecution  and  further  measures  be  taken  to

expedite the completion.  Para 5 of the O.M. dated 14.09.1992 takes

into  consideration  the  situation  where  such  proceedings  are  not

concluded even after  the expiry  of  2  years  and impresses upon the

appointing authorities to consider the desirability of giving promotion to

such Government servants keeping in view the following aspects:

(a) whether  the  promotion  of  the  officer  will  be  against  the  public

interest;

(b) whether the charges are grave enough to warrant continued denial

of promotion;

(c) whether there is any likelihood of the case coming to a conclusion

in the near future;

(d) whether the delay in the finalisation of proceedings, departmental

or  in  a  court  of  law,  is  not  directly  or  indirectly  attributable  to  the

Government servant concerned; and

(e) whether there is any likelihood of misuse of official position which

the Government servant may occupy after ad-hoc promotion, which may

adversely  affect  the  conduct  of  the  departmental  case/criminal

prosecution.

25. In  the  instant  case,  no  review,  after  every  six  months,  after  the

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convening of the first DPC way back in the year 2011, has been done.

No doubt, the criminal proceedings have not been initiated because of

the challenge to such proceedings by the appellant in the High Court

and this Court  where the matters remain pending,  at  the same time,

such review should have been taken.  This was more so when after

examining the case of the appellant, at one point of time, view was to

even withdraw the sanction and drop the prosecution.  Even when the

Central Government repeatedly asked the State Government to do so,

the State Government kept on dragging its feet.  No doubt, it has now

been decided not to withdraw the sanction and that issue is the subject

matter of SLP (Criminal) No. 7647 of 2009.  Fact remains that delay in

this behalf has been on the part of the State Government.  There are

other significant developments insofar as issue of golf course in a forest

area is concerned, it is almost dead now.  The persons involved in the

said main case stand discharged.  Even the public servants involved

therein stand promoted.  In view thereof, the Government should have

considered  the  desirability  of  giving  the  appellant  ad-hoc  promotion

when  prima facie  none of  the circumstances mentioned in  para 5 of

O.M. dated 14.09.1992 and extracted above appear to exist.   

26. We,  therefore,  dispose  of  these  appeals  with  directions  to  the

respondents to consider the case of the appellant for ad-hoc promotion

keeping  in  view  the  circumstances  of  this  case  including  the

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developments after the judgment of the High Court which are noted in

brief hereinabove.  Such a consideration shall, be done within a period

of  one  month  of  this  judgment.   The  contempt  petitions  also  stand

closed.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; DECEMBER 14, 2016.