TMI Blog2018 (7) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26.06.2015, for initiating major penalty proceedings against the respondent No.1. It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent No.1. The position remained the same when the O.A. filed by the respondent No.1 was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted. Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the Ministry of Home Affairs on 20.07.2015. Immediately thereafter, the petitioners wrote a letter dated 28.07.2015 to the Ministry of Home Affairs asking for certified copies of various documents including the factual report on the Articles of Charge so that appropriate disciplinary action could be initiated against the respondent No.1. 4. Simultaneously, when the recommendations of the DPC were placed before the Competent Authority, namely, the ACC, for making promotions to the post of CIT, the ACC desired that the status of complaints pending against the respondent No.1 be verified and on receiving requisite information, directed that the decision on the pending complaints be expedited by the petitioner No.1/Ministry of Finance. On 16.09.2015, an order was passed by the petitioner No.2/Central Board of Direct Taxes promoting eligible officers to the post of CIT. The name of the respondent No.1 did not find mention in the said order. 5. Aggrieved by the said exclusion, the respondent No.1 approached the Central Administrative Tribunal on 03.11.2015, by filing O.A.No.3604/2015. The said petition was opposed by the petitioners, who filed their counter affidavit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of receipt of a copy of this order. No costs. 6. Aggrieved by the decision of the Tribunal, the petitioners have filed the present petition stating inter alia that after the impugned judgment was pronounced on 12.05.2016, a charge-sheet was issued against the respondent No.1 on 06.02.2017 and that being the position, his case falls under clause 7 of the O.M. dated 14.09.1992 issued by the DoPT, Ministry of Personnel, Public Grievance and Pension, Government of India. Therefore, the recommendations made by the DPC qua the respondent No.1 had to be placed in a sealed cover, in circumstances explained at length in the captioned O.M. 7. Assailing the impugned judgment, Mr.Jasmeet Singh, learned counsel for the petitioners has argued that once a charge-sheet is issued against a government servant, then the sealed cover procedure ought to be followed in terms of the O.M. dated 14.09.1992; that even in the case of K.V.Jankiraman (supra) cited in the impugned judgment on subsequent issuance of a charge-sheet, the Supreme Court had upheld the decision of the Department that had in the said case, resorted to the sealed cover process. He concluded by stating that promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner filed the present petition in November, 2017 assailing the impugned judgment. In support of his submission that O.M. dated 14.09.1992 does not have any application to the facts of the present case and the impugned judgment does not deserve any interference, the following decisions were cited:- (i) Union of India and Others Vs. Anil Kumar Sarkar, (2013) 4 SCC 161; (ii) W.P.(C) 7030/2013, Union of India Ors. Vs. Satyendra Kumar Singh decided on 11.11.2013 by a Division Bench of the Delhi High Court; and (iii) Union of India Vs. Ashok Kumar, 2018 SCC OnLine Del 8432 10. We have given our careful consideration to the arguments advanced by learned counsels for the parties, perused the record and examined the decisions cited by both sides. 11. To start with, it is deemed appropriate to examine the O.M. dated 14.09.1992, relied on by learned counsel for the petitioners to justify the decision of adopting the sealed cover procedure in respect of the petitioners. The said O.M. was issued by the DoPT on the subject of Promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation . Placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise. 13. In contra-distinction to the O.M. dated 12.01.1988, wherein the sealed cover procedure was directed to be adopted in four circumstances, in the subsequent O.M. dated 14.09.1992, the DoPT had recommended that the said procedure ought to be adopted only in three circumstances, as stipulated in clause 2. In other words, the fourth category which was mentioned in the O.M. dated 12.01.1998, that referred to a situation where the DPC was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Courts. In the landmark case of K.V.Jankiraman (supra), common questions had come for consideration relating to adoption of sealed cover procedure in service jurisprudence. The said questions of law were framed by the Supreme Court in the following words:- 8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as sealed cover procedure . Concisely stated, the questions are:--(1) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?' The ,'sealed cover procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over'. Hence. the relevance and importance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. In the year 2013, came the decision of the Supreme Court in the case of Anil Kumar Sarkar (supra), where aggrieved by his non- promotion, the respondent had approached the Tribunal for issuing directions to the Government to permit him promotion to Group A (junior scale) in the Indian Railways Account Service (IRAS). The said petition was, however, dismissed by the Tribunal. The dismissal order was challenged by the respondent before the Gauhati High Court that had allowed the said petition and directed that an order be issued promoting the respondent to the next higher post with all consequential benefits. 19. Union of India had challenged the decision of the Gauhati High Court before the Supreme Court. Taking note of the fact situation in the said case, where the DPC for making promotions was conducted on 26/27. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal for relief. Relying on the judgment in the case of Union of India Ors. vs. Sangram Keshari Nayak (2007) 6 SCC 704, the Tribunal allowed the Original Application filed by the respondent. 21. The decision of the Tribunal was challenged by the Union of India before a Division Bench of this court where a plea was taken that the facts of the said case were covered by the decision of the Supreme Court in R.S.Sharma s case (supra) and of the High Court in C.P.Gupta s case (supra). On perusing the instructions issued by the DoPT in the O.M. dated 14.09.1992, the Division Bench opined that what is relevant is that a charge-sheet under the rules must have been issued against the concerned officer for placing the recommendations of the DPC in a sealed cover and in the said case, that has not been done. Instead, the charge-sheet was issued against the respondent therein only in February 2013, whereas the DPC had been convened a year prior thereto, in January, 2012. As a result, it was held that the respondent had wrongly been denied promotion, more so, when persons junior to him had been promoted. In this context the following observations made by the Division Bench are apposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n an ad-hoc basis, as was prayed for. 23. In the case of Ashok Kumar (supra) decided by this court as recently as on 10.04.2018, we had dismissed a petition filed by the Union of India against a judgment dated 16.01.2017, passed by the Central Administrative Tribunal allowing an original application filed by the respondent therein who was also working on the post of an Additional Commissioner in the Income Tax Department and was granted promotion to the post of Commissioner Income Tax reckoned from the date when his juniors had been promoted. In the said case, a DPC was constituted to consider promotion of eligible officers to the post of CIT in the year 2015, for the vacancy year 2014-2015. The respondent therein and Shri Dinesh Singh respondent No.1 before us were both empanelled along with other officers. The name of Ashok Kumar was recommended for promotion and placed before ACC. While conveying its approval for his appointment, the ACC had directed the DoP T to expedite taking a decision on the pending complaints against him and six other officers and including, the respondent No.1 in this petition and re-submit their cases for the consideration of the ACC at the earliest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted. 26. Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. As has been held in K.V.Jankiraman (supra), the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15. 27. We are of the opinion that the decisions cited by learned counsel for the petitioners in the case of Syed Naseem Zahir (supra) and C.P.Gupta (supra) are clearly dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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