UNION OF INDIA Vs. RADHAMONI S MENON

JUDGEMENT

(1.) These writ petitions are filed by the Government of India challenging the orders passed by the Central Administrative Tribunal, holding that the sealed cover procedure adopted in relation to the employees involved in these litigations for DPC held on 31.5.2011 is bad in as much that procedure was not contemplated or provided for in terms of the governing laws. In its gist, the view of the Tribunal is that after the law was laid by the Apex Court in Union of India v. K.V. Janakiraman, 1991 AIR(SC) 2010 the Government of India, through the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), came out with O.M. No. 22911/4/91 Estt. (A) dated 14.9.1992, in supersession of the earlier guidelines governing the concept of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation and therefore, the said O.M. governs the situation, in terms of which, the employees involved in these litigations are not those under the Government service in respect of whom, prosecution for criminal charge is pending; and therefore, the sealed cover procedure cannot be sustained; it has to be opened up and the Government servants concerned should be considered for promotion as against vacancies that fall for the DPC decision in the meeting held on 31.5.2011.

(2.) Learned Central Government counsel, making a strenuous effort to dislodge the views of the Tribunal, is arguing for the position that in terms of a later O.M. by the same department in the Ministry concerned, issued on 14.2.2007, guidelines regarding the grant of vigilance clearance in terms of Central Civil Service (Central civil posts) were issued, in terms of which, the situation under which vigilance clearance shall not be withheld have been enumerated. It is pithily argued that the case of the Government servants involved in these litigations do not fall under those guidelines. Learned Central Government counsel made reference to the judgment of the Apex Court in Union of India v. Kewal Kumar, 1993 3 SCC 204 to point out that sealed cover procedure may be resorted to in situations which fall under that decision. He also made reference to Union of India v. R.S. Sharma, 2000 4 SCC 394to point out how matters relating to cases involved in investigation and allied matters by the CBI has to be considered. The Central Government counsel also made reference to Food Corporation of India v. V.P. Bhatia, 1998 9 SCC 131 regarding the provisions contained in the vigilance manual of the Central Vigilance Commission. He further made reference to the decision in Union of India & Others v. Mihir Kumar Bandopadhyay & Others, 2009 16 SCC 329 to contend that the Government servants involved in these litigations are insisting on a direction which will run contrary to the express language of the unchallenged departmental instructions.

(3.) Per contra, learned counsel appearing for the employees argued that Janakiraman has been clearly explained later on by the Apex Court in Union of India & Others v. Sangram Keshari Nayak, 2007 6 SCC 704 and in view of the provisions of the afore-referred O.M. Dated 14.9.1992, as also the departmental clarification regarding promotion to higher cadre or post issued as per G.I., Department of Personnel and Training O.M. No. 11012/6/2008/Estt. (A) dated 7.7.2008, there is no room to upset the decision of the learned Tribunal. According to him, the Tribunal has come to the only conclusion available on the basis of the relevant statutory provision, the binding OMs and the precedents directly governing the point. He also stated that there is no question of the Government servants involved in these litigations seeking any relief contrary to the provisions of any O.M. or there is no need for them to challenge any provision of any O.M. that governs the field.