JUDGMENT :

SUGATO MAJUMDAR, J.

1. Aggrieved by the order passed by Learned Single Judge on 04.03.2024 in WPA No 824/2023 this intra Court appeal is filed.

2. Short periphery of the case is that, the Writ Petitioner was appointed as Junior Engineer on 01.011994. He was promoted to the post of Assistant Engineer on 11.05.2001. He became entitled to the second MACP (Modified Assured Career Progression) on 11.05.2021 but he was not granted the same on the ground of pendency of criminal prosecution against him. Sanction for prosecution against him was granted on 16.07.2021 and 24.03.2022 respectively, dates by which the Writ Petitioner had already become eligible for the second MACP.

3. The Learned Single Judge, in the impugned Judgement observed that, there is one difference between MACP benefits and promotional benefits; while the issue of regular promotion requires a decision making, according to the MACP Scheme benefit accrues at a particular point bereft of any such decision making. The Learned Trial Judge observed that FIR was registered in 2015/2016 and sanction for prosecution was granted in the month of March, 2022 whereas charge sheet was filed on 07.01.2022 and 04.07.2022. Prior thereto, the Petitioner had already become entitled to MACP benefits on 11.05.2021. Accordingly, the Learned Trial Judge directed the Respondent Authorities, particularly the Port Blair Municipal Council, to grant the second MACP benefits to the petitioner with effect from 11.05.2021 alongwith arrear and interest at a simple rate of 6% on the arrear amount.

4. Mr. Chakraborty, Learned Counsel for the Appellant specifically argued that pendency of criminal prosecution itself put embargo on entitlement to promotional benefits. In a case like this, sealed cover procedure should be resorted to till the Writ Petitioner is exonerated from the charges. Mr. Chakraborty relied upon an order of the Hon’ble Division Bench of Bombay High Court in Union of India and others Vs. K.S. Guliani and others. Mr. Chakraborty also relied upon the observation made in Bank of India and another Vs. Degala Suryanarayana, (1999) 5 Supreme Court Cases 762. In this case, it was observed by the Hon’ble Supreme Court of India that matters of promotion stand on different footing. Sealed cover procedure is the correct and well established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him. In that case, findings as to his entitlement to the service benefit of promotion, increment are kept in a sealed cover to be opened after the proceedings in question are over. The Hon’ble Supreme Court decided that case in a factual background that on 01.01.1986 only criminal proceeding was pending against the delinquent wherein he was acquitted. Subsequently departmental proceedings were initiated with the delivery of the charge sheet on 03.12.1991. It was held that the Respondent was entitled to promotional benefit with effect from 01.01.1986. Mr. Chakraborty further referred to a decision in Purushottam Kumar Singh Vs. State of Jharkhand and others, 2020 4 JLJR 347.

5. Mrs. Anjili Nag, Learned Counsel for the Writ Petitioner/ Respondent herein, submitted firstly, that at the time when second MACP become due, neither any charge sheet had been filed in the pending criminal prosecution nor any departmental enquiry had been initiated. Referring to the three Judge Bench decision of the Hon’ble Supreme Court of India in the case of Union of India and others Vs. K.V. Jankiraman and others, (1991) 4 SCC 109, it was submitted by Mrs. Nag that, it is only when a charge memo in a disciplinary proceeding or a charge sheet in a criminal prosecution is issued to the employee that it can be said that departmental proceedings/criminal prosecution has been initiated against the employee. Sealed cover procedure is to be resorted to only after the charge memo / charge sheet is issued; to deny