The main legal point established in the judgment is the interpretation of the sealed cover procedure under the DOPT OM dated 14.9.1992, specifically focusing on the meaning of 'prosecution for a criminal charge is pending' and its application in the case.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 13233/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

W.P.(C) No. 3025/2017

1. By this writ petition under Article 226 of the Constitution of India the petitioner seeks the relief that his employer/respondent/Central Warehousing Corporation should not resort to the sealed cover procedure as on 11.8.2015, and the petitioner in fact should be given promotion to the post of DGM (Technical) with effect from 11.8.2015 with consequential benefits.

2. The limited issue in this case is with respect to interpretation of paragraph 2(iii) of the Department of Personnel & Training (DOPT) Office Memorandum (OM) dated 14.9.1992 and which allows a sealed covered procedure to be obtained when a prosecution for criminal charge is pending against a person. Paragraph 2 of the OM dated 14.9.1992 in its entirety reads as under:-

“2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.

(i) Government servants under suspension

(ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

(iii) Government servants in respect of whom prosecution for criminal charge is pending.”

3. The factual matrix is that as against the petitioner a case under the Prevention of Corruption Act, 1988 and Section 120B and 420 of the Indian Penal Code, 1860 is pending as on date. The FIR in this case was sent to the concerned CBI court on 31.10.2014 and this is admitted by the petitioner himself in his letter dated 17.8.2016 and which letter reads as under:-

“Date: 17.08.2016

To

The Managing Director

CWC, CO,

New Delhi.

(Through Proper Channel)

Sub: Registration of FIR in CBI Court and withholding my promotion., reg

Ref: 1. My earlier representation on this matter during December 2015

2. My request for consideration of promotion dated 01.08.2016

3. DOPT Office Memorandum on vigilance clearance dt.02.11.2012 Sir, With reference to above, it is to submit that the seal cover procedure has been adopted in case of my promotion which is since October 2015, when only a FIR was filed by the CBI, Patna with the Special Judge, CBI-III, Patna vide RC No. 0232014/21 dt. 31.10.2014. As per DOPT guidelines, FIR should not be considered as prosecution. It is the date on which the Magistrate/Court takes cognizance of the offence, that is taken as the initiation of prosecution. (ref.sl. 03 enclosed)

xxxxx xxxxx xxxxx

sd/-

(Dr. Sidharth Rath) Encl: as above.

Asst. General Manager (PCS)”

4. Petitioner, however, claims that mere registration of FIR and consequent pendency of a case in a criminal Court should not be a ground to adopt the sealed cover procedure and that such sealed cover procedure can only be resorted to once a charge sheet is filed against the concerned person. Petitioner in support of his argument places reliance upon a Division Bench judgment of this Court in the case of Union of India and Ors. Vs. Doly Loyi, 2013 (7) AD (Delhi) 559.

5. It is clear that when we take the normal and literal meaning of the expression “prosecution for a criminal charge is pending”, then it is seen that since from 31.10.2014 a criminal case is pending against the petitioner, and therefore the case of the petitioner will necessarily fall under paragraph 2(iii) of the OM dated 14.9.1992. In fact, this is also so observed by the Division Bench of this court in the case of Doly Loyi (supra) with reference to an earlier decision dated 2.12.2011 in W.P. (C) Nos. 3793/2011 and 1470/2011. The relevant paras of the judgment dated 2.12.2011 in W.P.(C) Nos. 3793/2011 and 1470/2011 are reproduced in para 10 of the judgment in the case of Doly Loyi (supra) and the said para along with para 11 of the judgment in the case of Doly Loyi (supra) are reproduc