TMI Blog2015 (6) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been wrongly placed in sealed cover. Hence, in my view paragraph 7 would not be attracted. Accordingly, this writ petition is allowed. It is directed that the sealed cover be opened and if the petitioner was found fit for promotion by the DPC held on 14.10.2012, he be given promotion from the date his immediate junior was promoted. The petitioner would also be entitled to all consequential benefits. - CWP No. 12501 of 2013 (O&M) - - - Dated:- 30-6-2015 - Harinder Singh Sidhu, J. For the Appellant: Mr.Girish Agnihotri, Sr. Advocate assisted by Mr.Balwinder Singh, Advocate For the respondent : Mr.Arvind Mittal, Advocate JUDGMENT Harinder Singh Sidhu, J. The petitioner joined respondent No. 2 as Development Officer on 27.3.1987. He was promoted as Assistant Area Manager in 1992 and, thereafter as Area Manager in the year 1997, which post was subsequently designated as Deputy Manager. In 2001, he was promoted as Manager (Marketing) and was further promoted to the post of Senior Manager (Marketing) in the year 2005. In the year 2008, he was promoted as Chief Manager (Marketing). The next promotion, which is available to the petitioner as per the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as on the relevant date of consideration of his case by the DPC, none of these three conditions existed, the action of the respondents in adopting the sealed cover procedure was illegal. In the written statement filed on behalf of the respondents No. 2 to 5, it has been stated that the petitioner was ordered to be charge-sheeted by the competent authority on 28.12.2011, which is much prior to the meeting of DPC on 14.10.2012. Reliance has been placed on the decision of the Hon'ble Supreme Court in Union of India vs. Kewal Kumar and others, (1993) 3 SCC 204 and Union of India and another vs. R.S. Sharma (2000)4 SCC 394 to contend that when decision to initiate disciplinary proceedings or criminal prosecution has been taken prior to the DPC, in that event also, the sealed cover procedure can be adopted. Further reliance has been placed on paragraph No. 7 of the office memorandum dated 14.9.1992, as per which, if any of the circumstances, mentioned in paragraph 2 of the said memorandum arise after the recommendation of the DPC, but before the actual promotion, the case would be considered as if placed in sealed cover by the DPC and the government servant shall not be promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the respondents that the petitioner along with others was ordered to be charge sheeted on 28.12.2011. It is not denied that the case of the petitioner for promotion is to be considered in terms of the Government of India instructions dated 14.9.1992. The relevant paragraphs 2 and 7 which have been relied upon are reproduced below: No. 22011/4/91-Estt(A)Government of India, Ministry of Personnel, Public Grievances Pensions Department of Personnel and Training North Block, New Delhi 110 001 Dated: 14-9-1992 OFFICE MEMORANDUM Subject: Promotion of government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation- Procedure and guidelines to be followed. The undersigned is directed to refer to the Department of Personnel Training O.M. No. 22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of Government Servants against whom disciplinary/ Court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the clear enunciation of law by the Hon'ble Supreme Court in the above case and that a mere decision to initiate disciplinary proceedings without the issuance of a chargesheet before the date of DPC would be of no consequence. Ld. Counsel for the respondents on the other hand has relied on paragraph 7 of the O.M. to contend that if any of the circumstances mentioned in paragraph 2 thereof arise after the recommendations of the DPC are received, but before he is actually promoted, in such event also, the case has to be considered as if placed in a sealed cover by the DPC and has to await the conclusion of the disciplinary/ criminal proceedings. Ld. Counsel also relies on the decisions of the Hon'ble Supreme Court in the cases of Kewal Kumar and others and R.S. Sharma (supra). In my view the petitioners case is squarely covered by the decision of the Hon'ble Supreme Court in K.V. Jankiraman's case (supra). In that case, the Hon'ble Supreme Court considered in detail three questions that arise in relation to the `sealed covered procedure'; namely; 1. What is the date from which it can be said that disciplinary/criminal proceedings are pending against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Those conclusions are as follows: (ATC p. 196, para 39) (1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) * * * (3) * * * (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before; 17. 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. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. It approved the decision of the Ld. Administrative Tribunal directing that the sealed cover be opened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-12-1991. In the year 1986-87 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to to which the respondent was found entitled as on 1-1-1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1-1-1986. The two cases relied upon by the Ld. Counsel for the respondent do not detract from the aforesaid position. The facts in those cases were different and they were decided in the light of the earlier O.M. dated January 12, 1988 the provisions whereof were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was in the aforesaid context that the Hon'ble Supreme Court observed: 3. xxxxxxxx. In a case like the present, where the First Information Report was registered by the Central Bureau of Investigation, and on that basis the decision had been taken by the competent authority to initiate disciplinary proceedings for imposition of major penalty on the respondent prior to the meeting of the DPC, the applicability of the sealed cover procedure cannot be doubted. The formulation of the charges required for implementing the decision of the competent authority to initiate the disciplinary proceedings, is satisfied in such a case by the recording of the First Information Report by the Central Bureau of Investigation which records the allegations against the respondent, and provides the basis for disciplinary proceedings. The requisite formulation of the charges, in such a case, is no longer nebulous, being crystallised in the FIR itself and, therefore, even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the DPC, this fact alone cannot benefit the respondent. 4. The question to examine in each case, is : Whether, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerning the respondent in the sealed cover, investigation into FIR registered against him by the CBI in relation to allegations of serious financial irregularities was pending. Hence, the Sealed Cover Procedure was adopted as his case fell within the purview of clause (iv) of the second para of O.M. dated 12.1.1988. But on 31-7-1991 as per Office Memo No. 22011/1/91-Estt.(A) the restriction imposed as per clause (iv) was deleted from the second para of the Sealed Cover Procedure . However, three counts of clarifications were made by the Government of India through the same OM:- It is further clarified that- (i) All cases kept in sealed cover on the date of this OM on account of conditions obtainable in para 2(iv) of the OM dated 12-1-1988 will be opened. If the official had been found fit and recommended by DPC, he will be notionally promoted, from the date his immediate junior had been promoted. The pay of the higher post would, of course, be admissible only on assumption of actual charge in view of the provisions of Fundamental Rule 17(1). (Since only officiating arrangements could be made against the vacancies available because of cases of senior officials being in sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts warranted application of the ratio contained in Jankiraman. The added factor in these two cases was that the public servant concerned had been exonerated of the charges framed by the criminal courts. In the present case the respondent is still facing trial for serious offences, and hence the situation is different. The above cases were noticed by the Hon'ble Supreme Court in a later decision in Union of India v. Anil Kumar Sarkar, (2013) 4 SCC 161 and reiterating the observations of Jankiraman case it was observed: 14. As per Para 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 notice of the DPC viz. (i) Government servant is under suspension; (ii) Government servant has been served with a charge-sheet and the disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs. Specifically referring to the case of R.S. Sharma (supra) it was observed: 22. The learned ASG, by drawing our attention to the decision of this Court in Union of India v. R.S. Sharma submitted that in spite of the decision of this Court in Jankiraman case in view of Para 7 of the Office Memorandum and in the light of the fact that proceedings were initiated both criminal and departmental, the High Court committed an error by overlooking Para 7 of the sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharma case. Even though in the said decision, this Court has distinguished the decision in Jankiraman case and held that the same is not applicable to its case, in the light of the conditions mentioned in Para 2 as well as Para 7 of the Office Memorandum dated 14-9-1992 and of the categorical findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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