TMI Blog2017 (10) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of promotion of his juniors. It is an undisputed fact that, till date, the respondent has actually not been promoted. Another undisputed fact is that one of the circumstances mentioned in para 2 of the OM dated 14th September, 1992, has arisen on 24th October, 2016 by way of issuance of a chargesheet to him. Consequently, disciplinary proceedings against the respondent are underway. We find that there is a specific bar in the OM, which envisages that in such circumstances, where any of the situations mentioned in para 2 arises before the actual promotion of the government servant, he will not be promoted until he is completely exonerated of the charges against him. We are, thus, of the considered view that the claim of the respondent for opening the sealed cover or giving effect to the recommendations of the DPC is not at all sustainable. The respondent, who was under the cloud even when his suspension was revoked, as the matter was pending consideration with the CVC, would stand rewarded, notwithstanding the fact that a chargesheet has been issued to him some time thereafter, for which he is admittedly facing a departmental inquiry. Neither the OMs dated 14th Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly upon revocation of his suspension, the Respondent made representations seeking promotion to the post of Joint Commissioner. His plea was that as neither any charge-sheet had been issued to him, nor any criminal or departmental proceedings were pending against him, there was no justification in keeping his name in a sealed cover. The Respondent further relied upon DOPT s OM dated 14 th September, 1992 to contend that his promotion was not barred by any of the stipulations in the OM. 5. Despite the revocation of the Respondent s suspension, the Petitioner did not open the `sealed cover adopted by the DPC qua him. In the aforesaid background, the Respondent preferred the Original Application before the Tribunal. In his OA, the Respondent sought a direction to the Petitioner to consider and promote him to the cadre of Joint Commissioner with effect from the date of promotion of his juniors. Placing reliance on the DOPT s OM dated 14th September, 1992, the Respondent had contended that upon revocation of his suspension, the embargo on his promotion no longer remained, as neither any charge-sheet had been issued to him, nor any criminal proceedings were pending against him. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Supreme Court in the case of Ajay Kumar Chaudhary (supra), as the charge-sheet could not be issued to him within ninety days of the suspension. He contends that when the suspension was revoked on 24th June, 2015, the matter was still under consideration of the CVC and, in fact, after consideration of the entire matter, a charge-sheet dated 24th October, 2016 has already been served to the Respondent on 7th November, 2016. Mr. Bhardwaj further contends that the charges leveled against the Respondent are serious in nature. He has played a key role in the clearance of consignment of 1504 cylinders containing R-22 gas. He submits that the Respondent was fully aware of the act of smuggling and, in fact, he goes on to contend that the smuggling was being done with the respondent s active connivance. Mr. Bhardwaj, therefore, contends that in such situation, where in any event, a chargesheet now stands served to the respondent and a departmental enquiry is underway on account of very serious charges, the direction to open the sealed cover and grant him promotion in case he is found fit, would amount to rewarding him with a promotion, despite an ongoing departmental inquiry on ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the decision in case Sohan Lal Vs. Union of India Ors. MANU/PH/1616/2015 order dated 22nd July, 2015 passed by the Central Administrative Tribunal, Chandigarh Bench in the case of R.L. Channalia Vs. Union of India. 11. We have heard learned counsel for the parties and perused the record as well as Office Memoranda dated 14th September, 1992 and 2nd November, 2012. The undisputed position which emerges from the record is that the Respondent was initially placed under suspension on 4th October, 2013. His suspension was extended from time to time as per provisions of Rule 10 of the CCS (CCA) Rules. A DPC was convened on 17th June, 2015 on which date the case of the Respondent was kept in a sealed cover. It is also an undisputed fact that the Respondent s suspension was revoked on 24th June, 2015 i.e. prior to the date when his juniors were promoted, vide order dated 30th June, 2015. The petitioner was neither under suspension, nor any kind of chargesheet had been issued to the Respondent on the date of promotion of his juniors. 12. It is also the common case of the parties that on 17th June, 2015, when the meeting of the DPC was convened, since the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded. xxx xxx xxx 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. (emphasis supplied) 13. Since reliance has been placed on OM dated 2nd November, 2012 by the learned counsel for the Respondent, we deem it appropriate to reproduce para 5 of the same which reads as under:- 5. The O.M No. 22012/1/99-Estt. (D) dated 25th October, 2004 further provides that a DPC shall assess 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) dated 14.09.1992, alongwith other eligible candidates, without taking in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Union of India Vs. Anil Kumar Sarkar (Supra), we also find that the same is not at all applicable to the facts of the present case. The said case related to a Government servant, in whose case both-on the date of DPC, and on the date of promotion of his juniors, the matter was still at a preliminary stage and neither any suspension order had been issued, nor any of the other conditions referred to in para 2 of the OM had been fulfilled. In these circumstances, the Supreme Court held that on the relevant date, no disciplinary proceedings were initiated or pending against the Government servant and, therefore, rejected the reliance placed by the Union of India on para 7 of the memorandum by observing that on the date of promotion of juniors, none of the circumstances referred to in para 2 of the memorandum had arisen. The Supreme Court in para 11 of the aforesaid judgment, observed as under:- 11. As per paragraph 2 of the said memorandum, at the time of consideration of the Government servants for promotion, the following details of Government servants in the consideration zone for promotion falling in the categories mentioned should be specifically brought to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case. The present case relates to an employee whose consideration was rightly placed under sealed cover when the DPC met on 17th June, 2015. The issue is, as to when the sealed cover should have been opened. Is it to be opened immediately upon the revocation of suspension, or is the employer justified in reasonably awaiting the outcome of the disciplinary proceedings. In our view, the decision of the Supreme Court in the case of Union of India Vs. K.V. Jankiraman (supra) does not at all support, the claim raised by the Respondent. We have also considered the decision of the Supreme Court in the case of Union of India Vs. R.S. Sharma (supra) relied upon by learned counsel for the Petitioners. We agree with the learned counsel for the Respondent that the said case relates to an earlier OM of 1988 and not to the OM dated 14th September, 1992, which is applicable to the case of the Petitioner. We are, therefore, refraining from examining the ratio of the said decision relied upon by the learned counsel for the Petitioner. 18. If the view of the Tribunal were to be upheld, it would mean that the respondent, who was under the cloud even when his suspension was revoked, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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