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TMI Blog2024 (9) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law. There are no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference. The Sealed Cover wherein the assessment of the respondent was considered by the DPC was presented to the Court by learned counsel for the appellant and was opened. The letter shows that the DPC assessed the respondent to be FIT for promotion. Consequential steps in light of the above recommendations shall follow - appeal dismissed. - SANDEEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deprived from being considered for promotion along with his batchmates. 5. Being aggrieved by the withholding of the vigilance clearance and adoption of the sealed cover procedure, the respondent filed Original Application No. 8 of 2011 before the Central Administrative Tribunal, Guwahati Bench. Original Application No. 8 of 2011 was allowed vide order dated 28th June, 2011 and the appellants were directed to consider the case of the respondent and pass a reasoned order within two months. In compliance of the said direction, the appellants considered the case of the respondent for promotion and vide communication dated 15th September, 2011, rejected the same holding that there was no justification for the opening of Sealed Cover and considering the case of the respondent herein for promotion along with his batchmates. 6. The order dated 15th September, 2011 was challenged by the respondent before the Central Administrative Tribunal, Principal Bench, New Delhi by preferring Original Application No. 3716 of 2011. The Tribunal vide order dated 7th March, 2012 allowed the aforesaid Original Application, quashed the communication dated 15th September, 2011, and directed the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for promotion to the grade/post of of Shri.. ...in respect (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.......'. The proceeding of the DPC need only contain the note. The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. ( emphasis supplied ) 10. Learned counsel, while placing emphasis on clause(iii) of Para No. 2 i.e. Government servants in respect of whom prosecution for a criminal charge is pending submitted that this expression has to be read in light of the object sought to be achieved i.e. a tainted officer should not be allowed to be promoted till the cloud is clear and during this period, the sealed cover procedure is to be adopted. 11. He submitted that the said OM does not specifically indicate as to before which forum or at what stage, the prosecution for criminal charge is required to be pending in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced by learned counsel for the appellants and urged that the denial of promotion to the respondent by resorting to the sealed cover procedure is exfacie illegal and bad in eyes of law. 16. He submitted that on the relevant date of DPC being convened as well as on the date of issuance of the promotion orders whereby the batchmates of the respondent were promoted, there was no impediment in the promotion of the respondent in terms of Para No. 2 of OM dated 14th September, 1992(reproduced supra), as the respondent s case does not fall under any of the three clauses enumerated in the said Para. The respondent was not placed under suspension; no departmental proceedings were ever initiated against the respondent and no criminal charge was pending against him and thus the restrictive clauses would not ex-facie operate against the respondent s right to be considered for promotion. 17. He further drew the Court s attention to clause(iii) of Para No. 2 of OM dated 12th January, 1988, as per which the sealed cover procedure could be adopted with regard to a Government servant in respect of whom the prosecution for a criminal charge was pending or sanction for prosecution had been issued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14th September, 1992, which covers the issue, it is clear that it prescribes the conditions under which the assessment done by the DPC is to be kept in the sealed cover. According to this OM, the sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and Government servants in respect of whom prosecution for criminal charge is pending. 22. Learned counsel for appellant made a pertinent submission that the case of the respondent falls under the third clause of the above OM, i.e. Government servants in respect of whom prosecution for criminal charges is pending. Thus, the question requiring consideration is as to whether a mere grant of prosecution sanction would be sufficient to infer that the prosecution for a criminal charge was pending against the respondent. Similar issue came up for consideration before this Court in the case of Union of India v. K.V. Jankiraman (1991) 4 SCC 109 , wherein it was held that sealed cover procedure is to be resorted to only after the charge memo/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in departmental proceedings and or prosecution of criminal charges followed by either penal/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge-sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued or the officer is placed under suspension. The pendency of preliminary investigation prior to that stage is not adopt the sealed cover procedure. ( emphasis supplied ) 24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge- ..... 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