The sealed cover procedure should be followed when an officer is facing criminal prosecution, and promotion is not automatic. The O.M. dated 14.09.1992 prohibits promotion if the officer is facing criminal prosecution, departmental enquiry, or is suspended.

SANJIV KHANNA, J.

This writ petition by the Union of India and its functionaries impugns the order dated 15th July, 2014 passed by the Principal Bench of the Central Administrative Tribunal (Tribunal, for short) whereby OA No. 107/2013 filed by V. Appalla Raju, the respondent before us, has been allowed with the direction that the respondent would be promoted as Commissioner of Income Tax with effect from 11th July, 2009, the date his immediate junior was promoted, and he would be entitled to consequential benefits of seniority and pay fixation.

2. The respondent is an officer belonging to the Indian Revenue Service. While working as Additional Commissioner of Income Tax, he was charge-sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and accordingly the sealed cover procedure was followed by the Departmental Promotion Committee (DPC) held between December, 2008 and January, 2009 while considering him and others for promotion to the post of Commissioner of Income Tax. On 11th July, 2009, promotion orders for the posts of Commissioner of Income Tax were issued for those found fit by the DPC. The list included some officers, who were junior to the respondent.

3. The respondent had challenged the charge sheet in OA No. 2582/2009, which was allowed by the Tribunal on 24th February, 2010, albeit giving liberty to the petitioners to issue a fresh charge sheet, if so advised. Thereupon, the respondent filed OA No. 165/2011 with the prayer that the sealed cover should be opened. The Tribunal allowed OA No. 165/2011 vide order dated 12th September, 2011, directing the petitioners to open the sealed cover within six weeks. Alleging non-compliance, the respondent filed contempt petition CP No. 674/2012 in response to which an affidavit was filed by the petitioners stating that the respondent was found unfit for promotion by the DPC.

4. The respondent and some others in the meanwhile had been communicated “below the benchmark” Annual Confidential Reports (ACRs) for the years 2004-05 and 2005-06 in terms of the O.M. dated 13th April, 2010 issued by DoP&T, in compliance with the directions of the Supreme Court in Dev Dutt versus Union of India, (2008) 8 SCC 725. The respondent made a representation for upgradation of the ACRs, which was accepted. On 27th and 28th December, 2010, a review DPC was convened to consider the case of the respondent and five others. On 1st April, 2011, these five officers were declared fit for promotion and were consequently promoted with effect from 11th July, 2009. The respondent was, however, left out and was not promoted. By letter dated 17th/20th December 2012, the respondent was informed as under:-

“I am directed to say that in compliance to the Hon’ble Tribunal’s direction dated 12.9.2011 the recommendation of DPC kept in sealed covers in respect of Sh. V.A. Raju was opened. The regular DPC had assessed the officer as ‘Unfit’. However, a review DPC for the panel year 2008-09 in respect of Sh. V.A. Raju, with the upgraded ACR as per DOPT’s OM dated 13.4.2010 was also held in which the officer was assessed as ‘Fit’.

The recommendation of the DPC after obtaining approval by Minister-in-Charge was sent to the DOP&T for consideration of the Competent Authority (ACC). The Competent Authority (ACC) decided as under:

“Shri V.A. Raju had approached the CAT regarding opening of sealed cover containing recommendations of the regular DPC. The direction of the CAT is also with respect to sealed cover of the regular DPC. The regular DPC for the panel year 2008-09 had adjudged Shri V.A. Raju as ‘Unfit’ While review DPC adjudged him as ‘Fit’. However, a case for review DPC has not been made out since the action of Department to communicate the below benchmark gradings in term of DOP&T OM dated 13.4.2010 and convening of review DPC for the year 2008-09 is not in order. The DOPT’s OM dated 13.04.2010 is concerned with only future DPCs and it does not affect the original D