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Min of Per, Public Grievances and Pensions
No. 22034/4/2012-Estt.(D) dated 02-11-2012
Subject: Comprehensive review of
instructions pertaining to vigilance clearance for promotion – regarding
Instructions issued vide O.M. No.
22012/1/99-Estt.(D) dated 25.10.2004 based o the O.M. No. 22011/4/1991-Estt.
(A) dated 14.09.1992 (issued on the basis of procedure laid down by Supreme
Court in K.V., Jankiraman case AIR 1991 SC 2010) makes it clear that vigilance
clearance for promotion may be denied only in the following three
circumstances:-
(i) Government servants under suspension;
(ii) Government servants in respect of whom
a charge sheet has been issued
and the disciplinary
proceedings are pending; and
(iii) Government servants in respect of whom
prosecution for a criminal charge
is pending.
Withholding
of vigilance clearance to a Government servant who is not under suspension or
who has not been issued a charge sheet and the disciplinary proceedings are
pending or against whom prosecution for criminal charge is not pending may not
be legally tenable in view of the procedure laid down in the aforesaid O.Ms.
2. Existing
instructions provide for processing the cases of disciplinary proceedings in a
time bound manner. A number of cases have however, come to notice where
initiation of disciplinary proceedings/issue of charge sheet/processing of the
case is considerably delayed by the administrative Ministries/ Departments.
Such delays allow an officer whose conduct is under cloud, to be considered for
promotion. It becomes essential in respect of officer(s) in whose case
disciplinary proceedings are contemplated or pending and are included in
consideration zone form promotion, necessary action be taken for placing the
proposal before the DPC so that vigilance clearance is not allowed as per
conditions mentioned in para 1 above.
3. The
Hon’ble Supreme Court in its judgment dated 27.08.1991 in Union of India Vs
K.V. Jankiraman etc. (AIR SC 2010) has held;
“5. 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
interests. An employee found
guilty of misconduct cannot be placed on par with
the other employees and his case
has to be treated differently. There is therefore,
no discrimination when in the
matter of promotion, he is treated differently”
4. The
issue of promotion of an officer who may be technically cleared from vigilance
angle but in whose case it may not be appropriate to promote him/her in view of
doubtful integrity or where a charge-sheet is under consideration etc. has been
under examination in this Department.
5. The
O.M. No. 22012/1/99-Estt. (D) dated 25th October, 2004 further
provides that a DPC shall asses the suitability of the Government servant
coming within the purview of the circumstances mentioned in para 2 of the Office
memorandum No. 22011/4/91-Estt.(A) date 14.09.1992, along with other eligible
candidates, without taking into consideration the disciplinary case/criminal
prosecution pending. No promotion can be withheld merely on the basis of
suspicion or doubt or where the matter is under preliminary investigation and
has not reached the stage of issue of charge sheet etc. if in the matter of
corruption/dereliction of duty etc., there is a serious complaint and the
matter is still under investigation, the Government is within its right to
suspend the official. In that case, the officer’s case for promotion would
automatically be required to be placed in the sealed cover.
6. When
a Government servant comes under a cloud, he may pass through three stages, namely,
investigation, issue of charge sheet in Departmental Proceedings and/or
prosecution for a criminal charge followed by either penalty/conviction or
exoneration/acquittal. During the stage of investigation prior to issue of
charge sheet in disciplinary proceedings or prosecution, if the Government is
of the view that he 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/charge sheet is issued or the officer
is placed under suspension. The tendency of preliminary investigations prior to
that stage is not sufficient to adopt the sealed cover procedure.
7. The
law on sealed cover based on the judgment of the Apex
Court in Union of India Vs. K.V.
Janakiraman etc. (AIR 1991 SC 2010), is by now well settled. The O.M. dated
14.9.92 confined the circumstances for adopting sealed cover to the three
situations mentioned in para 2 of the said O.M. Even after recommendation of
the DPC, but before appointment of the officer if any of the three situations
arise, the case is deemed to have been kept in sealed cover by virtue of para 7
of the O.M. dated 14.9.92.
8. As
regards the stage when prosecution for
criminal charge can be stated to be pending, the said O.M. dated 14.9.92
does not specify the same and hence the definition of pendency of judicial
proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules,
1972 is adopted for the purpose. The Rule 9 (6)(b)(i) of CCS (Pension) Rules,
1972 provides as under:-
“(b) Judicial
proceedings shall be deemed to be instituted –
(i) In the case of criminal proceedings, on
the date on which the
complaint or report of a Police
Officer, of which the Magistrate takes
Cognizance, is made”.
9. For
the purpose of vigilance clearance for review DPC, instructions exist in O.M.
No. 22011/2/99-Estt.(A) dated 21.11.2002 that review DPC will take into
consideration the circumstances obtaining at the time of original DPC and any
subsequent situation arising thereafter will not stand in the way of vigilance
clearance for review DPC. However, before the officer is actually promoted it
needs to be ensured that he/she is clear from vigilance angle and the provision
of para 7 of O.M. No. 22011/4/91-Estt.(A)( dated 14.09.1992 are not attracted.
10. Opening of sealed cover on conclusion of proceedings, is
covered in the instructions in para 3 of the O.M. dated 14.9.92. In cases where
by the time the Departmental proceedings are concluded and the officer is fully
exonerated bnt another charge sheet has been issued, the second charge sheet
will not come in the way of opening 0f sealed cover and granting promotion
notionally from the date of promotion of the junior and para 7 of O.M. dated
14.9.92 will not apply as clarified in the O.M. No. 22011/2/2002-Estt.(A) dated
24.2.2003. After the disciplinary proceedings are concluded and penalty is
imposed, vigilance clearance will not be denied. The details of the penalty
imposed are to be conveyed to the DPC.
11. This Department has issued separate instructions for
accordance of vigilance clearance to a member of Central Civil Services/holder
of Central Civil post with respect to (a) empanelment (b) deputation (c)
appointments to sensitive posts and assignments to training programmers (except
mandatory training) vide O.M. No. 11012/11/2007-(Estt. A) dated 14.12.2007. It
has been further clarified in the O.M. No. 11012/6/2008-(Estt. A) dated
07.07.2008 that these instructions do not apply to promotions. While
consideration for promotion is a right of an employee but empanelment,
deputation, posting and assignment for training (except mandatory training) is
not a right of an employee and is decided keeping in view the suitability of
the officer and administrative exigencies.
12. It may thus be noted that vigilance clearance cannot be
denied on the grounds of pending disciplinary / criminal / court case against a
Government servant, if the three conditions mentioned in para 2 of this
Department’s O.M. dated 14.09.1992 are not satisfied. The legally tenable and
objective procedure in such cases would be to strengthen the administrative
vigilance in each Department and to provide for processing the disciplinary
cases in a time bound manner. If the chares against a Government servant are
grave enough and whom Government does not wish to promote, it is open to the
Government to suspend such an officer and expedite the disciplinary
proceedings.
13. All Ministries/Departments are, therefore, requested to keep
in view the above guidelines while dealing with cases of vigilance clearance
for promotion of the Government servants.
Sd/-
(Virender Singh)
Under Secretary to the Government
of India
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