# Yogendra Singh Yadav v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 555
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Writ A No. 6422 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-singh-yadav-v-state-of-u-p-ors-47870
- **Pages:** 6

## Headnote

A. Service Law - Promotion - Prevention
of Corruption Act, 1988: Section 13(1)(C),
13(1)(D), 13(2) - Promotion etc. cannot
be
withheld
merely
because
some
disciplinary/criminal
proceedings
are
proposed to be initiated against the
employee concerned.

Disciplinary proceedings can be said to be
pending only when charge sheet is issued
to the delinquent employee. Criminal
proceedings can be said to be pending
only when charge sheet is submitted by
556 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Investigating
Officer
before
the
competent trial court. (Para 5, 12)

B.
The
pendency
of
preliminary
investigation prior to that stage will not
be sufficient to enable the authority to
adopt the Sealed Cover Procedure. (Para
11)

Either the employee concerned should be
suspended, or Charge Sheet in disciplinary
proceedings should have been issued to him, or
charge sheet in Criminal Case should have been
filed before the competent trial court before
Sealed Cover Procedure could have been
adopted. (Para 13)

In
the
present
case,
till
date
only
investigation is being carried out by the
Investigation Officer. No charge sheet has
been submitted before the competent trial
court. Therefore, it could not be said that any
criminal proceedings are pending against the
petitioner and the Order impugned has been
passed on misconceived grounds. It is not
disputed
by
the
respondent
that
no
disciplinary/departmental proceedings were
initiated on the basis of alleged irregularities
in the implementation of Rajiv Gandhi Rural
Electrification Scheme. No charge sheet in
any departmental proceeding has been served
upon the petitioner. Therefore, the two
requisite conditions for putting the petitioners
case under Sealed Cover Procedure as per the
GO dated 28.05.1997 are non-existent in so
far as the petitioner is concerned. The
petitioner has not been suspended at any
point of time and he was working as Junior
Engineer. (Para 5)

In the case of the petitioner, till the date of
filing of the counter affidavit in September,
2021, Charge Sheet had not been filed by the
Investigating Officer/Vigilance Officer before the
competent trial court, hence, the orders
impugned are set aside. (Para 14)

Writ petition allowed. (E-4)

Precedent followed:

## Text

11 All. Yogendra Singh Yadav Vs. State of U.P. & Ors.
555
Third, apparently, the respondents are
themselves of that view, in as much as they
did not seek to transfer the Assistant
Teacher (Mathematics) at Government
Inter
College,
Tyodi,
Ghaziabad,
to
accommodate the petitioner. Rather they
have transferred the petitioner to such post
that was lying vacant at Government Inter
College Anooppur, Dibai, Hapur. Yet, that
very
principle
was
violated
while
displacing the petitioner from Government
Inter College, Nandgram, Ghaziabad, in the
first place. That is the extent of whimsical
exercise if not abuse of discretion.

14. Consequently, the transfer orders
dated 13.07.2021 and 03.09.2021 in so far
as they seek to transfer out the petitioner
from
the
Government
Inter
College,
Nandgram,
Ghaziabad
are
wholly
conflicted to law. They are wholly
unsustainable. Accordingly, the transfer
orders dated 13.07.2021 and 03.09.2021
transferring
the
petitioner
from
Government Inter College, Nandgram,
Ghaziabad, to Government Inter College,
Tyodi, Ghaziabad and from Government
Inter
College,
Tyodi,
Ghaziabad
to
Government
Inter
College
Anooppur,
Dibai, Hapur are quashed.

15. The petitioner be allowed to re-join
the Government Inter College, Nandgram,
Ghaziabad forthwith, without prejudice to the
rights of Smt. Pooja Tyagi to transfer under the
Government Order dated 18.04.2018. That
request may be reconsidered afresh, in
accordance
with
law,
considering
the
observations made above. That exercise be
completed within a one month from today,
against prior notice to her in that regard.
Meanwhile, she may continue to render service
at Government Inter College, Nandgram,
Ghaziabad, along with the petitioner.

16. Since the petitioner has been
wholly wronged, for no fault, and has been
forced to litigate, he is also found entitled
to costs that are assessed at Rs. 10,000/- per
month, for the period when the petitioner
could not work at Government Inter
College, Nandgram, Ghaziabad. Let costs
be paid out by the first respondent within
one month from today.

17. The petition stands allowed with
costs as above.
----------
(2022) 11 ILRA 555
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ A No. 6422 of 2021

Yogendra Singh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pratik Chandra, Sr. Advocate, Sri Ashok
Khare

Counsel for the Respondents:
C.S.C., Sri Purnendu Kumar Singh

A. Service Law - Promotion - Prevention
of Corruption Act, 1988: Section 13(1)(C),
13(1)(D), 13(2) - Promotion etc. cannot
be
withheld
merely
because
some
disciplinary/criminal
proceedings
are
proposed to be initiated against the
employee concerned.

Disciplinary proceedings can be said to be
pending only when charge sheet is issued
to the delinquent employee. Criminal
proceedings can be said to be pending
only when charge sheet is submitted by
556 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Investigating
Officer
before
the
competent trial court. (Para 5, 12)

B.
The
pendency
of
preliminary
investigation prior to that stage will not
be sufficient to enable the authority to
adopt the Sealed Cover Procedure. (Para
11)

Either the employee concerned should be
suspended, or Charge Sheet in disciplinary
proceedings should have been issued to him, or
charge sheet in Criminal Case should have been
filed before the competent trial court before
Sealed Cover Procedure could have been
adopted. (Para 13)

In
the
present
case,
till
date
only
investigation is being carried out by the
Investigation Officer. No charge sheet has
been submitted before the competent trial
court. Therefore, it could not be said that any
criminal proceedings are pending against the
petitioner and the Order impugned has been
passed on misconceived grounds. It is not
disputed
by
the
respondent
that
no
disciplinary/departmental proceedings were
initiated on the basis of alleged irregularities
in the implementation of Rajiv Gandhi Rural
Electrification Scheme. No charge sheet in
any departmental proceeding has been served
upon the petitioner. Therefore, the two
requisite conditions for putting the petitioners
case under Sealed Cover Procedure as per the
GO dated 28.05.1997 are non-existent in so
far as the petitioner is concerned. The
petitioner has not been suspended at any
point of time and he was working as Junior
Engineer. (Para 5)

In the case of the petitioner, till the date of
filing of the counter affidavit in September,
2021, Charge Sheet had not been filed by the
Investigating Officer/Vigilance Officer before the
competent trial court, hence, the orders
impugned are set aside. (Para 14)

Writ petition allowed. (E-4)

Precedent followed:

1. U.O.I. & ors. Vs K.V. Janki Raman, 1991 (4)
SCC 109 (Para 5, 13)
2. U.O.I. Vs Sangam Keshari Nayak, 2007 (6)
SCC 704 (Para 12)

3. Harsh Kumar Sharma Vs St. of Pun., 2017 (4)
SCC 366 (Para 12)

Present petition challenges order dated
04.02.2021 and also the consequential
order
dated
27.02.2021,
passed
by
Managing
Director,
U.P.
Power
Corporation Limited, Shakti Bhawan,
Lucknow with a further prayer that the
respondents be directed not to interfere
in the working of the petitioner as
Assistant
Engineer
(Electricity
Distribution Sub Division) Banda Rural,
District-Banda and not to adopt Sealed
Cover Procedure in respect of promotion
of the petitioner as Assistant Engineer in
the Department.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Pratik
Chandra and Sri Purnendu Kumar Singh,
learned counsel Singh appearing for the
Respondent Nos. 2 to 5.

2. This petition has been filed by the
petitioner challenging the order dated
04.02.2021 passed by the Respondent No. 2
and also the consequential order dated
27.02.2021 passed by the Respondent No. 2
with a further prayer that the respondents
be directed not to interfere in the working
of the petitioner as Assistant Engineer
(Electricity Distribution Sub Division)
Banda Rural, District-Banda and not to
adopt Sealed Cover Procedure in respect of
promotion of the petitioner as Assistant
Engineer in the Department.

3. It is the case of the petitioner that
he was appointed as a Junior Engineer
initially on Ad hoc basis in 2007, and
thereafter, confirmed on the post in
11 All. Yogendra Singh Yadav Vs. State of U.P. & Ors.
557
question and was transferred from place to
place. Lastly he was working in the office
of the Executive Engineer Electricity
Distribution Division, Kanpur Dehat. A
dispute
arose
with
regard
to
implementation of Rajiv Gandhi Gramin
Vidyutikaran Yojna 2005-2006 and the
petitioner
was
directed
by
the
Superintending Engineer to appear before
the
Inspector
in-charge
of
Vigilance
Inquiry, Sri Ajit Kumar on 29.11.2018 at
Jhansi to get his statement recorded. The
petitioner then came to know that a First
Information Report was lodged under
section 409, 420, 120-B and Section 13
(1)(C), 13(1)(D), 13 (2) of the Prevention
of Corruption Act, 1988 at PS- Navabagh,
District Jhansi on 05.07.2019 against 9
persons including the petitioner in respect
of
irregularities
pertaining
to
implementation of Rajiv Gandhi Rural
Electrification Scheme as aforesaid. While
the investigation was pending, proceedings
for promotion were undertaken by the
department and eligibility list was issued,
the petitioner's name was included in the
said eligibility list. A direction was issued
by the Headquarter to provide information
about
pendency
of
any
disciplinary/
criminal proceedings or issuance of charge
sheet if any in either of such proceedings
against the officers whose name were
mentioned in the eligibility list. No
information was sent in so far as the
petitioner was concerned. The petitioner
was considered by the DPC and his name
appeared in the list of selected candidates
for the post of Assistant Engineer under the
40% promotion quota as evident from the
order issued by the Managing Director,
UPPCL on 26.10.2019. The petitioner
joined as Assistant Engineer, Electricity
Distribution Division, Jhinjak, Kanpur
Dehat on 30.10.2019, and thereafter was
directed to join the office of the Chief
Engineer, Electricity Distribution Zone,
Banda. The petitioner was also sent for
training on 17.01.2020, and he completed
his training and was directed to join at
Electricity Distribution Division, Karvi-2,
District Chitrakoot. The petitioner joined as
Sub Divisional Officer, EDD Sub Division,
Karvi-2, District Chitrakoot and was later
on transferred to Electricity Distribution
Sub Division, Banda Rural where he joined
on 23.08.2020. The Respondent No. 2 has
proceeded to pass an impugned order dated
04.02.2021 cancelling his earlier order of
promotion dated 26.10.2019 and has further
directed that the case of the petitioner shall
be deemed to have been put under sealed
cover as per the provisions of the
Government
Order
dated
28.05.1997.
Consequent to this order the petitioner has
been reverted to his substantive post of
Junior Engineer and the Respondent No.3
the
Accounts
Officer,
UP
Power
Corporation Limited has further directed
for payment of salary of the post of Junior
Engineer to the petitioner, the salary that
the petitioner was getting before his
promotion The petitioner has joined in
pursuance of the impugned order and is
getting salary of Junior Engineer.

4. It has been argued by the learner
Counsel appearing for the petitioner that
the impugned order has been passed
without giving any opportunity of hearing
to the petitioner. As per clause 11 of the
Government Order dated 28.05.1997, if
Departmental
Promotion
Committee
recommends the name of an employee, but
before the implementation of the order of
promotion, any relevant fact comes to the
knowledge
of
the
authorities,
which
relevant fact would have resulted in placing
the case of the employee concerned under
sealed cover, then the order of promotion
shall not be given effect, to and the
558 INDIAN LAW REPORTS ALLAHABAD SERIES
Recommendation of the DPC shall be
treated to have been placed under Sealed
Cover. Since the petitioner was already
promoted and then the report regarding
Open Vigilance Inquiry in terms of
Government Order Dated 05.07.2019 came
to light, his case was not covered under
Clause 11 of the Government Order dated
28.05.1997. It is not as if the petitioner was
made an accused in the criminal FIR
lodged against him without the knowledge
of
the
respondent
authorities.
The
respondent
authorities
including
the
Superintending Engineer had knowledge of
Open Vigilance Inquiry and had also
directed the petitioner to appear before the
Vigilance Officer concerned on 27.08.2020
for recording his statement.

5. It has also been argued by Shri
Ashok Khare, learned Senior Advocate that
till date only investigation is being carried
out by the Investigation Officer. No charge
sheet has been submitted before the
competent trial court. Therefore, it could
not be said that any criminal proceedings
are pending against the petitioner and the
Order impugned has been passed on
misconceived grounds. It is not disputed by
the
respondent
that
no
disciplinary/departmental proceedings were
initiated
on
the
basis
of
alleged
irregularities in the implementation of
Rajiv Gandhi Rural Electrification Scheme.
No charge sheet in any departmental
proceeding has been served upon the
petitioner. Therefore, the two requisite
conditions for putting the petitioners case
under Sealed Cover Procedure as per the
Government Order dated 28.05.1997 are
non-existent in so far as the petitioner is
concerned. The petitioner has not been
suspended at any point of time and he was
working as Junior Engineer. The counsel
for the petitioner has placed reliance upon
the judgement rendered in the case of
Union of India and Others Vs. K.V. Janki
Raman 1991 (4) SCC 109 , wherein it has
been held that promotion etc. cannot be
withheld merely because some disciplinary/
criminal proceedings are proposed to be
initiated against the employee concerned.
Disciplinary proceedings can be said to be
pending only when charge sheet is issued to
the
delinquent
employee.
Criminal
proceedings can be said to be pending only
when charge sheet is submitted by the
Investigating Officer before the competent
trial court.

6. Learned Senior Counsel for the
petitioner has also pointed out Clause 10 of
the Government Order dated 28.05.1997
wherein it has been stated that in case of
prolonged
pendency
of
disciplinary
proceedings/ criminal proceedings, the case
of
the
employee
concerned
can
be
considered for grant of Ad Hoc promotion
by the Departmental Promotion Committee.

7. Sri Purnendu Kumar Singh, on the
basis of counter affidavit filed by the
respondents,
says
that
financial
embezzlement to the tune of Rupees
1,600/-
crores
was
found
in
the
implementation of Rajiv Gandhi Rural
Electrification Scheme in 14 Districts of
Uttar Pradesh including Banda where the
petitioner was posted. Initially an Inquiry
was held by the Vigilance Cell of the
Corporation but taking into account the
seriousness of the matter the Special
Secretary,
Department
of
Energy,
Government of U.P. by his letter No. 1263
dated
15.06.2015
has
informed
the
Corporation that the matter has been taken
up for Open Vigilance Inquiry by the UP
Vigilance Establishment and has directed
the Corporation to provide all necessary
help for the proper conduct on the
11 All. Yogendra Singh Yadav Vs. State of U.P. & Ors.
559
Vigilance Inquiry. The Deputy Secretary,
Department of Energy, Government of UP
has also by his letter No. Janch-17/24-P-22019-Satarkta (15)/2012 dated 19.06.2019
has informed that the petitioner is one of
the accused and has been found prima facie
guilty of financial embezzlement.

8. It has also been submitted by Sri
Purnendu Kumar Singh that the Office
Memorandum No.1849 issued by the
Power Corporation dated 08.10.1997 has
adopted the Sealed Cover Procedure as
given in the Government Order dated
28.05.1997 and it was only because of
misinformation that the petitioner had been
promoted and therefore the impugned order
has been passed cancelling his promotion
and treating the recommendations of the
DPC to be kept in Sealed Cover in so far as
the petitioner is concerned.

9. It has, however, not been disputed
by Sri Purnendu Kumar Singh that the
counter affidavit does not say whether the
Investigating Officer in pursuance of the
Vigilance Inquiry has filed a charge sheet
against the petitioner in the competent trial
court. He says that the counter affidavit was
filed by the respondents in the month of
September 2021 and one year has lapsed,
therefore, he does not know the current
situation.

10. This court feels that if and when
charge sheet is filed before the competent
trial court, the provisions of Government
Order dated 28..05.1997 would become
applicable and not before that. The
prerequisites for placing the case of the
petitioner under sealed cover did not exist
at the time of issuance of the impugned
order dated 04.02.2021 as per law settled
by the Supreme Court in the case of Union
of India and Ohers versus K.V. Janki
Raman. In the said case, the Supreme
Court was considering a Government Order
issued by the Government of India,
Department of Personnel and Training
dated 30.01.1982 where Sealed Cover
Procedure was proposed to be adopted in
the case of officers who are under
suspension, or against whom disciplinary
proceedings are pending for a long time, or
a decision had been taken by the
Competent
Authority
to
initiate
the
disciplinary proceedings, or against whom
prosecution had been launched in a Court
of Law, or sanction for prosecution had
been issued at the appropriate time when
the DPC was being held. It was also
provided in the said Government Order that
after the findings are kept in sealed cover,
in any subsequent DPC held thereafter, if
the employee still facing disciplinary/
criminal proceedings, his case shall be
considered again and the DPC shall record
its finding and keep the same also in sealed
cover. The Government Order dated
30.01.1982
was
further
modified
by
Government Order dated 12.01.1988, and a
further guideline was issued that the same
Sealed Cover Procedure was to be applied
where
the
Government
Servant
is
recommended for promotion by the DPC,
but before he is actually promoted he is
either
placed
under
suspension
or
disciplinary
proceedings
are
initiated
against him or decision has been taken to
initiate proceedings or criminal prosecution
is
launched
or
sanction
for
such
prosecution has been issued, or decision to
afford such sanction is taken.

11. The Supreme Court considered the
question as to when for the purpose of Sealed
Cover Procedure, the disciplinary / criminal
proceedings can be said to have commenced,
and the Court observed that it is only when
Charge Memo is issued in disciplinary
560 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings or a Charge Sheet is filed in a
Criminal Court it could be said that disciplinary
proceedings / criminal proceedings are pending
against the employee concerned. The pendency
of preliminary investigation prior to that stage
will not be sufficient to enable the authority to
adopt the Sealed Cover Procedure. The Court
also considered the contentions raised by the
Counsel for the appellant (Union of India) that
where there are serious allegations it takes time
to collect necessary evidence and to prepare and
issue a Charge Memo/ Charge Sheet and it
would not be in the interest of purity of
Administration to award the employee with the
promotion, increment etc., but observed that
such argument did not impress their Lordships.
It was observed as follows:-

"..........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
employees 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......."

12. The judgement of the Supreme Court
in K. V. Janki Raman(Supra) has been
reinstated in Union of India Vs. Sangram
Keshari Nayak 2007(6) SCC 704 and Harsh
Kumar Sharma Vs. State of Punjab, 2017 (4)
SCC 366, where the Supreme Court has again
held that only after charge sheet is filed,
criminal proceedings can be said to be pending.

13. It is evident from the observations
made by the Supreme Court in the case of K.V.
Janki Raman(Supra) that either the employee
concerned should be suspended, or Charge
Sheet in disciplinary proceedings should have
been issued to him, or charge sheet in Criminal
Case should have been filed before the
competent trial court before Sealed Cover
Procedure could have been adopted.

14. In the case of the petitioner, till the
date of filing of the counter affidavit in
September, 2021, Charge Sheet had not been
filed by the Investigating Officer / Vigilance
Officer before the competent trial court, hence,
the orders impugned are set aside.

15. Let consequential orders be passed by
the Respondent No.2 within a period of six
weeks from the date a copy of this order is
produced before him.

16. The Writ Petition stands allowed.
----------
(2022) 11 ILRA 560
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

First Appeal No. 20 of 2007

Smt. Gayatri Mohapatra @ Smt. Gayatri
Devi ...Defendant-Appellant
Versus
Ashit Kumar Panda ...Plaintiff-Respondent

Counsel for the Appellant: