TMI Blog2013 (11) TMI 1727X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed the Original Application filed by the respondent herein with a direction to the petitioners to promote him with effect from June 25, 2012, the date from which his juniors were promoted. 12. Few facts relevant for deciding the issue are that in the year 2008-09 the CBI had registered a preliminary inquiry against the respondent and some other persons. 3. The CVC gave its advice on June 16, 2011 for initiation of major penalty proceedings against the respondent. 4. On January 09, 2012 a DPC met in UPSC for making promotions to the grade of Commissioner of Customs and Central Excise on ad-hoc basis. The name of the respondent was considered and was accordingly recommended as ?fit? for promotion to the grade of Commissioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Delhi) C.P.Gupta vs. Union of India. 7. On the other hand, Ms.Jyoti Singh, learned senior counsel for the respondent would support the judgment of the Tribunal and relied upon the latest judgment of the Supreme Court in Civil Appeal No.2537/2013 decided on March 15, 2013 Union of India and Ors. vs. Anil Kumar Sarkar. She also relied upon the judgment of this Court in W.P.(C) 166/2012 Union of India and Ors. vs.R.P.Singh decided on January 16, 2012. 8. Having heard the rival submissions of the learned counsel for the parties, we are unable to agree with the submission of Mr.R.V.Sinha that since ACC had not approved the promotion of the respondent, his non- promotion is justified. The instructions vide O.M dated September 14, 1992 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.? 10. Even in Sangram Keshari Nayak?s case (supra) the Supreme Court held as under: Whereas Para 6 of the said circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in Para 2 thereof arise after the recommendation of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter ala when one or the other conditions mentioned in Para 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge- sheet had been is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991.? 12. In the case in hand the DPC was convened in January 2012 and the promotion order was issued on June 25, 2012. The charge-sheet was issued much later only on February 22, 2013. There was no impediment on the date when promotion order issued against the respondent from being promoted. Mere pendency of investigation is no ground for denying the promotion to the respondent. It appears that it was for this reason that the DPC (UPSC) had not put the recommendations in sealed cover. In fact his name was sent to the ACC for approval which did not approve it but had sought cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the Original Application. On appeal the High Court allowed the petition and set aside the order of the Tribunal issuing directions in favour of Mr.Anil Kumar Sarkar for promotion with all consequential benefits. The Supreme Court by considering the O.M dated September 14, 1992 has held as under: We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued. Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another vs. R.S. Sharma, (2000) 4 SCC 394 submitted that in spite of decision of this Court in Jankiraman?s case (supra) in view of para 7 of the office memora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the dates on which the recommendation was made by the Departmental Promotion Committee (DPC) or the approval was granted by the Appointments Committee of the Cabinet (ACC) or the decisions were rendered by the Tribunal on 08.12.2011 and 03.01.2012. It is also not the case that there was any prosecution pending of a criminal charge against the respondent. Therefore, none of the circumstances referred to in Clause 2 of OM dated 14.09.1992 were applicable at the time when the recommendation was made, WP (C) No.166/12 Page 8 of 9 approval was granted and the impugned orders were passed. Consequently, Clause 7 of OM dated 14.09.1992 would also not be applicable to the facts and circumstances of the present case. We also find it strange that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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