JUDGMENT S.N. Srivastava, J.
1. These two petitions are interknil together by reason of consideration of common issues involved and for facility of adjudication of the controversy by a composite decision. The first petition has been preferred by petitioners Umesh Kumar and Virendra Kumar Arya conjointly assailing their non-consideration and consequent supersession in the matter of promotion from Assistant Logging Officer/Deputy Logging Officer to the post of Logging Officer while the second petition has been preferred by petitioner Umesh Kumar alone questioning the validity of the order whereby respondent Nos. 4 and 5 have been given promotion and the petitioner has been denied yet further promotion to the post of Divisional Logging Officer.
2. It is necessary to unfold only so much facts as may bear upon the controversy involved in this petition. The petitioner, to begin with, entered the service in the year 1983 as Assistant/Deputy Logging Officer. In the year 2002 the said post was re-designated as Deputy Logging Officer. The petitioner, it is claimed, worked unabatedly on the said post upto April, 2002. According to the assertions in the petition, the petitioner figured in the Seniority List at serial No. 49 while respondent Nos. 4 and 5 with whom he is embroiled in the present petition found mention at Serial Nos. 76 and 107 respectively. It would further appear from the record that besides the general seniority list, a separate seniority list of 18 persons consisting of S.C./S.T. category was also processed and in that list, the petitioner figured at serial No. 2 and in adherence to the reservation quota in promotion, two persons were to be picked up for promotion out of the list separately prepared for S.C./S.T. candidates but the Departmental Promotion Committee constituted for the purpose, while eschewing petitioner from consideration, recommended Vinod Kumar Chaudhary respondent No. 4 and Kesh Ram Sagar respondent No. 5 for promotion to the next higher post in the hierarchal order, i.e., Logging Officer. It would also transpire from the record that Vinod Kumar Chaudhary who was commended for promotion figured at serial No. 3 of that list prepared separately for S.C./S.T. candidates while another person namely Kesh Ram Sagar was an O.B.C. candidate. It is in this backdrop that the present petition has been instituted for the reliefs of quashing the impugned orders.
3. In the context of the above facts, I delved further deep into the record in order to dig out further information bearing on the controversy. It transpires from the record that the petitioner was eschewed from consideration by reason of the fact that some departmental proceedings had been set afoot against him. Before I notice and advert to the contentions made across the bar, it would be proper to have acquaintance with the relevant Rules governing the service condition of the petitioner. The rules germane to the controversy are Rules 6, 7 and 8 which lay down criteria for promotion. It is stipulated in essence that the Departmental Selection Committee shall be constituted which shall consider the cases for promotion. It is further provided that criteria for promotion would be seniority subject to rejection of unfit. It would also transpire that all eligible candidates shall be considered for promotion who had completed span of five years in the feeding cadre. It is also envisaged in the Rules that character roll/confidential report recorded by the reporting officer shall constitute basis for consideration of promotion.
4. Learned counsel for the petitioner began his submission canvassing that there was nothing adverse against him on the record which could have furnished foundation for non-consideration and consequent supersession. As a matter of fact, some departmental enquiry had been initiated which according to the own admission of the learned counsel for the Forest Corporation had come to be dropped as against petitioner No. 2 namely, Virendra Kumar Arya. It is further canvassed that criteria being seniority cum rejection of unfit, seniority was to play predominant role. It is further canvassed that even if it be assumed that departmental enquiry operated as obstacle, the Departmental Promotion Committee could have resorted to the sealed cover procedure which having not been done, the entire selection made by the Departmental Promotion Committee suffers from the vice of arbitrariness. In vindication of the above submissions, the learned counsel also placed credence on two decisions rendered by Apex Court in B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors., JT 1998 (5) SC 96 and State of M. P. v. J. S. Bansal and Anr., AIR 1998 SC 1015. Per contra, learned counsel appearing for Forest Corporation tried to vindicate the selection held by the Departmental Promotion Committee on the ground that the conduct of the petitioner was under scrutiny in the department proceeding and as such he was rightly pronounced unfit.
5. It brooks no dispute that the departmental proceeding as against petitioner No. 1 was set afoot and was under-way on or about the date the Departmental Promotion Committee met to scan the respective suitability of the candidates for promotion. It has been candidly conceded by the learned counsel for the Forest Corporation that departmental enquiry had been dropped as against petitioner No. 2. It has not been refuted that any adverse entry was not communicated to any of the petitioners nor anything tangible has been adduced to indicate that the petitioner No. 1 had any tainted service record furnishing foundation for excising the petitioner from consideration for promotion to the next higher post except that some departmental enquiry had been set afoot. It is obvious that the petitioner has been declared unfit merely on the ground that there were pending departmental enquiries. The core question that surfaces in the forefront in the context of the above facts is whether Departmental Promotion Committee was Justified in negativing the claim of the petitioner for being considered for promotion on ground of pendency of departmental enquiry. The answer to the said question may be attempted in the light of the following decisions of the Apex Court. I would first notice decision of the Apex Court in Delhi Development Authority v. H.C. Khurana. 1993 (2) SLR 509, in which the Supreme Court was seized of similar question and the substance of what has been held in that decision is that the sealed cover procedure was applicable, in cases where the disciplinary proceedings are pending in respect of the Government servant ; or a decision has been taken to initiate disciplinary proceedings. H was observed in no Delphic terms by the Supreme Court that on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a Government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a Government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an enquiry has to be made according to the decision taken. in such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to exclude and declare him unfit for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. It was further observed by the Apex Court that to reconcile these conflicting interests, of the Government servant and public administration, the only fair and just course is to consider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings and in case he is exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selections Committee. in the above conspectus, it has come to be settled that in the event of departmental proceeding, the only just and fair course would be to follow the sealed cover procedure in order to prevent the possibility of any injustice or arbitrariness. In Union of India v. K. V. Jankiraman, 1991 (5) SLR. the Constitution Bench observed that "an employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest". In connection with sealed cover procedure, it was observed by the Apex Court in the self-same decision that "the sealed cover procedure is adopted when an employee is due for promotion, increment, etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence the findings of his entitlement to the benefit are kept in a sealed cover to be opened, after the proceedings in question are over". The ultimate conclusion to which the Constitution Bench converged may be excerpted below :
"There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously and that is what the Full Bench has Intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee,"
The ratio decidendi that can be distilled and deduced from the above decision is that promotion, etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. It is in the backdrop of pendency of disciplinary proceeding that the Apex ' Court has underscored the significance to resort to the sealed cover procedure. Reverting to the instant case, the petitioner No. 1 has been summarily jettisoned from the zone of consideration on mere premises that he was under a cloud owing to pendency of departmental enquiry. As rightly observed by the Apex Court in Delhi Development Authority's case (supra), where a decision has been taken to initiate the disciplinary proceedings against a Government servant, his promotion, even if he is found otherwise suitable would be incongruous for the reason that a Government servant under such a cloud should not be promoted till he is cleared of the allegations against him but at the same time it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings. The aforesaid Constitution Bench decision has been considered with approval by the Apex Court in its subsequent decision rendered in State of M. P. v. J. S. Bansal, AIR 1998 SC 1015. The Apex Court echoed the similar view that an employee cannot be denied his right of consideration for promotion at the interlocutory stage of the departmental proceedings as he is still to be found guilty on the basis of the evidence which might be produced against him during those proceedings and that till the charges are established his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. It was further observed that mere suspicion is not a substitute for proof and consideration for promotion along with other eligible candidates is done so as to give effect to the Fundamental Right available even to a delinquent employee under Articles 14 and 16 of the Constitution. The distillate of the above decisions is that pendency of any disciplinary proceeding would not debar an otherwise eligible candidate from being considered for promotion.
6. As stated supra, my attention has not been drawn to anything on record to indicate that the petitioner had any blemished escutcheon nor the facet of any tainted service record has been pressed into service except the faint argument by the learned counsel for the respondent that the petitioner had some adverse entries to his discredit. This argument was fiercely resisted by the learned counsel for the petitioner stating that no adverse entries to his discredit were ever communicated to the petitioner so as to enable him to represent against such, adverse entries. I have also traversed through the counter and rejoinder-affidavits and a collation of both the affidavits do not reveal that the petitioner had been eliminated from consideration on the basis of any other material except pending departmental enquiry. The view does not brook dispute that a stale un-communicated entry cannot be acted upon to the disadvantage of an employee. It would rather appear that he was singled out from consideration on mere basis that some departmental enquiry was going on, and it was on the basis of pending enquiry that the petitioner was omitted from consideration and the committee proceeded to select respondent Nos. 4 and 5 who were admittedly junior to the petitioner. In the above conspectus, I am of the view that it is quite iniquitous situation that the Selection Committee passed over the petitioner without resorting to the statutory provision of sealed cover procedure.
7. The next submission pressed into service is that the period of eligibility has been relaxed from five years to six months by means of resolution dated 24.3.2003 and on that basis, the respondent Nos. 4 and 5 have been selected and promoted. In connection with this proposition, I would confine myself to saying that executive Instructions has to operate subservient to the statutory provisions and it can only supplement and not supplant the statutory rules and further the executive instructions cannot be deployed to modify or amend the statutory provision. It books no dispute that a valid rule cannot be substituted by the executive instructions (See Senior Superintendent of Post Officer v. Izhar Hussain. 1989 (4) SLR 229 (SC), No valid foundation has been divulged by the learned counsel for relaxation of the period of eligibility and in the circumstances, I cannot resist from observing that the resolution thereby providing relaxation in the period of eligibility was not grounded in any valid foundation so as to warrant relaxation in order to supply any lacuna or gap in the statutory rules. In this perspective, it can safely be held that relaxation of period of eligibility by resolution suffers from the vice of arbitrariness.
8. In the above conspectus, I sum up that the petitioner was omitted from consideration without any justification or valid basis for promotion by the Departmental Promotion Committee on mere basis of pendency of enquiry and it therefore, committed an error by not resorting to sealed cover procedure.
9. So far as second petitioner is considered, it has been fairly conceded that the departmental enquiry has been dropped as against him and thus, his consideration for promotion by the Selection Committee is cleared of the obstacles.
10. As a result of foregoing discussion, both the petitions are allowed and the Impugned order dated 28.1.2003 (Annexure-3 to the Writ Petition No. 18494 of 2003) and also the Resolution No. 10 dated 22.3.2003 (Annexure-4 to Writ Petition No. 30785 of 2003) and consequent proceeding thereto are quashed. In consequence, it is directed that the authorities concerned shall reconvene the meeting of Departmental Promotion Committee which shall scan the relevant record and decide the matter of promotion of the concerned petitioners in accordance with law and the decision so arrived at by the committee in so far as petitioner Umesh Kumar is concerned against whom enquiry is stated to be still pending, still be kept in sealed cover and it will be opened only after the departmental enquiry is taken to some finality.