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TMI Blog2015 (6) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... aid post is made on the basis of merit, which is adjudged by giving separate marks on the basis of Annual Confidential Reports, qualification, experience and performance at the interview before the Departmental Promotion Committee. A panel of 18 candidates was to be prepared for promotion to the post DGM as per the anticipated vacancies till 1.6.2013 and the selected candidates were to be promoted as per this panel, as and when a vacancy arose. As the petitioner was eligible and qualified for being considered for the post of DGM, he was called to appear before the DPC for consideration for the post of DGM on 14.10.2012. As per the Seniority List, the petitioner's name figures at No. 32 and the candidates upto Sr.No. 55 in the said list were within the zone of consideration. The petitioner appeared before the DPC on 14.10.2012. But he was not promoted. On enquiry, he was informed that out of recommended panel of 18 candidates for promotion to the post of DGM, 17 had already been given promotion, whereas, the case of the petitioner had been kept in a sealed cover due to communication received from the Vigilance Department dated 12.10.2012, wherein, it had been mentioned that a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner before his actual promotion. It has been explained that a complaint was received against the petitioner, upon which a preliminary investigation was undertaken, wherein, it was found that official vehicle had been misused with the approval of the petitioner. Consequently, he and some other persons were ordered to be charge-sheeted on 28.12.2011. However, one Shri Sahdev Sahore, who was also ordered to be charge-sheeted along with the petitioner, moved a representation to be granted an opportunity before charge-sheeting and also deposited the amount for the misuse of the vehicle. However, after granting him due opportunity, the concerned authorities again found the petitioner and others charged along with him to be guilty and again ordered that they be charge-sheeted on 5.7.2012 and file was sent to the vigilance department for necessary action. The vigilance department again issued notice to the petitioner and others and after hearing them, again recommended to the competent authority that disciplinary proceedings be initiated against the petitioner and the other persons involved, which was finally approved on 27.12.2012. However, once again Shri Sahdev Sahore mov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed in this regard by the authorities concerned is laid down in the subsequent paras of this O.M. for their guidance. xxx xxx xxx 2 Cases of government servants to whom sealed cover procedure will be applicable.-At the time of consideration of the cases of government servants for empanelment details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee: (i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; (iii) Government servants in respect of whom prosecution for a criminal charge is pending. xxx xxx xxx 7. Sealed cover procedure applicable to officers coming under cloud holding of DPC but before promotion.-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the first question, it was observed: "16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in various cases. In Union of India v. Sudha Salhan (Dr),: (1998) 3 SCC 394, at page 396 : "6. The question, however, stands concluded by a three- Judge decision of this Court in Union of India v. K.V. Jankiraman in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to a higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken to initiate disciplinary proceedings and as per Clause (iv) of paragraph 2, such procedure was applicable in cases where an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any agency, departmental or otherwise. The relevant para 2 of this O.M. dated 12.1.1988 is reproduced below: "Cases where 'Sealed Cover Procedure' applicable.- At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee: (i) government servants under suspension; (ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; (iii) government servants in respect of whom prosecution for a criminal charge is pending or a sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution; (iv) government servants against whom an investigation on serious allegations of corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It would be incongruous to hold that, in a case like the present, where the CBI had recorded the FIR; sent the same to the superior authorities of the respondent for taking necessary action; and the competent authority had taken the decision, on the basis of the FIR, to initiate disciplinary proceedings against the respondent for imposition of major penalty, there can be any doubt that the sealed cover procedure is attracted to avoid promoting the respondent, unless exonerated of those charges. These facts, which led to the adoption of the sealed cover procedure, are undoubtedly very material to adjudge the suitability of a person for promotion to a higher post. A decision to follow the sealed cover procedure in these circumstances cannot, therefore, be faulted." Clearly indicating that the decision was rendered in the light of the OM dated 12.1.1988 it was observed: at page 207 : "6. We may also advert to another aspect of this case. In para 2 of the office memorandum No. 22011/2/86-Estt. (A), dated January 12, 1988 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, on the subject of procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case will continue to be in the sealed cover. (iii) On opening of the sealed cover because of deletion of para 2(iv) if an officer is found to have been recommended as 'unfit' by DPC no further action would be necessary." As per the facts of this case on completion of investigation by the CBI, the Minister of State concerned gave his approval to prosecute the respondent on 9-7-1991. The matter was referred for the advice of the Central Vigilance Commission (CVC) and on receipt of its advice and completion of other formalities, the President granted approval for sanction for prosecution on 30-9-1991. The Hon'ble Court accepted the contention of learned Additional Solicitor General that as the Minister concerned accorded approval for granting sanction to prosecute the respondent as early as 9-7-1991, the recommendations of DPC must remain under sealed cover by virtue of the conditions specified in clause (iii) of the second para of the Sealed Cover Procedure, because in such an event deletion of clause (iv) on 31-7-1991 by itself had no consequence. The Hon'ble Supreme Court in this case has clearly stated that the clauses of the second para considered in Jankir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facing any criminal prosecution. In such circumstances, in terms of Para 2 referred to above, the recommendation of the DPC has to be honoured and there is no question of applying "sealed cover process". 15. Mr. Mohan Jain, learned ASG submitted that Para 2 has to be read along with Para 7 of the Office Memorandum dated 14-9-1992. We have already extracted Para 7 of the memorandum which makes it clear that a government servant, who is recommended for promotion by the DPC if any of the circumstances mentioned in Para 2 of the said memorandum arises after the recommendations of the DPC are received, but before he is actually promoted, will be considered as if his case has been placed in a sealed cover by the DPC. After extracting Para 2, we also highlighted the three conditions prescribed therein. Though, the learned ASG has mentioned that four charge-sheets were issued to the respondent, enquires were completed and show- cause notices had already been served on the respondent, on the relevant date, namely, 21-4-2003, when his batchmates were promoted, none of the conditions was in existence in the case of the respondent. Admittedly, the respondent was not placed under susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the case of the petitioner in the sealed cover cannot be sustained. At the relevant time when the DPC was held on 14.10.2012, none of the three circumstances mentioned in paragraph 2 of the O.M. 14.9.1992 was present to justify resort to the sealed cover procedure. The mere fact that a decision had been taken to initiate disciplinary proceedings and issue a charge-sheet before that date on 28.12.2011, would be of no consequence, in view of the specific requirement in the second paragraph of the O.M. that for resort to sealed cover procedure charge-sheet must have been issued and disciplinary proceedings must be pending. Paragraph 7 also does not help the respondents because it cannot be intended to cover cases where promotion was withheld in the first instance by wrong resort to sealed cover procedure. In the present case the charge-sheet was eventually issued only on 21.6.2013, about six months after the holding of the DPC on 14.10.2012 when the petitioner's case had 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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