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2015 (6) TMI 1145 - HC - Indian LawsSealed cover procedure - case on completion of investigation by the CBI - Held that - The decision of the DPC to keep 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 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.
Issues Involved:
1. Legality of adopting the sealed cover procedure for the petitioner's promotion. 2. Applicability of the Office Memorandum dated 14.9.1992 and relevant Supreme Court judgments. Issue-wise Detailed Analysis: 1. Legality of adopting the sealed cover procedure for the petitioner's promotion: The petitioner, a Senior Manager (Marketing) eligible for promotion to Deputy General Manager (DGM), was considered by the Departmental Promotion Committee (DPC) on 14.10.2012. Despite being eligible, his promotion was withheld, and his case was placed in a sealed cover due to a communication from the Vigilance Department dated 12.10.2012, indicating that a vigilance case was contemplated against him. The petitioner challenged this decision, arguing that the sealed cover procedure was improperly adopted since, on the relevant date, he was neither under suspension, issued a charge-sheet, nor facing any criminal prosecution. 2. Applicability of the Office Memorandum dated 14.9.1992 and relevant Supreme Court judgments: The petitioner relied on the Office Memorandum dated 14.9.1992 and the Supreme Court judgment in Union of India v. K.V. Jankiraman (1991) 4 SCC 109, which stipulate that the sealed cover procedure can only be adopted if, at the time of consideration for promotion, the government servant is under suspension, issued a charge-sheet with pending disciplinary proceedings, or facing prosecution for a criminal charge. As none of these conditions existed on 14.10.2012, the petitioner argued that the sealed cover procedure was illegal. The respondents contended that the decision to charge-sheet the petitioner was taken on 28.12.2011, prior to the DPC meeting, and relied on the Supreme Court judgments in Union of India vs. Kewal Kumar (1993) 3 SCC 204 and Union of India vs. R.S. Sharma (2000) 4 SCC 394. They argued that the sealed cover procedure was justified if the decision to initiate disciplinary proceedings was made before the DPC meeting, even if the charge-sheet was issued later. The court examined the relevant paragraphs of the Office Memorandum dated 14.9.1992, particularly paragraphs 2 and 7, which outline the conditions for adopting the sealed cover procedure. Paragraph 2 specifies that the procedure applies if the government servant is under suspension, issued a charge-sheet with pending disciplinary proceedings, or facing criminal prosecution. Paragraph 7 extends the procedure to cases where such conditions arise after the DPC's recommendation but before the actual promotion. The court determined that the petitioner's case was governed by the principles established in K.V. Jankiraman's case, which clarified that the sealed cover procedure could only be adopted after a charge-sheet is issued. The court found that the decision to charge-sheet the petitioner was made on 28.12.2011, but the actual charge-sheet was issued on 21.6.2013, well after the DPC meeting on 14.10.2012. Therefore, the mere decision to initiate disciplinary proceedings without issuing a charge-sheet before the DPC meeting did not justify the sealed cover procedure. The court also distinguished the cases of Kewal Kumar and R.S. Sharma, noting that they were decided under the earlier Office Memorandum dated 12.1.1988, which allowed the sealed cover procedure based on a decision to initiate disciplinary proceedings. The applicable Office Memorandum dated 14.9.1992, issued after the Jankiraman decision, required the issuance of a charge-sheet for the sealed cover procedure to apply. Conclusion: The court concluded that the decision to adopt the sealed cover procedure in the petitioner's case was unsustainable. Since none of the conditions in paragraph 2 of the Office Memorandum dated 14.9.1992 existed at the time of the DPC meeting on 14.10.2012, the sealed cover procedure was improperly applied. The court directed that the sealed cover be opened and, if the petitioner was found fit for promotion by the DPC, he should be promoted from the date his immediate junior was promoted, with all consequential benefits.
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