IMPORTANT POINT
Promotions of government servants under disciplinary proceedings cannot be granted until they are fully exonerated, as per established legal principles.

JUDGMENT :

(Sanjay Kumar Medhi, J.) :

The grievance of the petitioner raised in this petition filed under Article 226 of the Constitution of India is with regard to his promotion.

2. As per the facts projected, the petitioner was serving as a Superintending Engineer (Civil) in the Border Roads Organization (hereinafter BRO). He was deputed to the NHIDCL and in that period there were certain allegations of illegal gratification and the petitioner was repatriated to the BRO. On 01.11.2022, he was placed under suspension. On 20.12.2022, a Departmental Promotion Committee Meeting was held in which the case of the petitioner was considered and was kept in sealed cover. In the inter se seniority list, certain incumbents, who were below the petitioner, were given the benefit of promotion on 17.02.2023. However, no such promotion was given to the petitioner. On 03.02.2023, a review meeting was held on the aspect of suspension of the petitioner wherein it was decided to extend the suspension. On 10.03.2023, the memo of charges was submitted to the petitioner and the disciplinary proceeding was initiated. The petitioner had filed WP(C)/1074/2023 against the order of suspension. This Court vide an order dated 18.10.2023 had however set aside the order of suspension. The department had preferred WA/448/2023 which was however dismissed on 18.12.2023. The petitioner was thereafter reinstated on 25.01.2024.

3. As indicated above, the grievance of the petitioner is not giving him the benefit of promotion as the sealed cover proceedings are yet to be opened.

4. I have heard Shri D. Bora, learned counsel for the petitioner. I have also heard Shri S. K. Medhi, learned C.G.C. and Dr. A. Todi, learned counsel for the UPSC.

5. Shri D. Bora, the learned counsel for the petitioner has submitted that the order of suspension being interfered with, there is no occasion to have the proceedings of his consideration in a sealed cover. It is submitted that admittedly the incumbents against Serial Nos. 5 and 6 in the inter se seniority list were given the promotion on 17.02.2023 and in the said inter se seniority list, the petitioner was placed against Serial No. 4. He accordingly submits that from the said date on which his juniors were promoted, i.e. 17.02.2023, the petitioner should be given the promotion.

6. The learned counsel for the petitioner has submitted that the aspect of “sealed cover” has been settled by the Hon’ble Supreme Court in the case of Union of India Vs K. V. Jankiraman reported in AIR 1991 SC 2010. He also submits that in the case of Union of India Vs Anil Kumar Sarkar reported in (2013) 4 SCC 161, the principles laid down in Jankiraman (supra) has been reiterated.

7. The learned counsel has also submitted that the defense which appears from the affidavit-in-opposition filed by the respondents is based on an Office Memorandum dated 14.09.1992, more particularly Clause 7 thereof. It is submitted that the said office memorandum would not come into the way for considering the case of the petitioner in view of the judgment passed by the Hon’ble Supreme Court in the case of Anil Kumar Sarkar (supra). He has further submitted that in the disciplinary proceeding, the enquiry report is submitted and as per information gathered, none of the allegations have been found to be proved. He accordingly submits that due interference may be made by directing opening of the sealed cover and considering the case of promotion of the petitioner from 17.02.2023 when his juniors were promoted.

8. Per contra, Shri S. K. Medhi, the learned CGC has submitted that the petition itself may not be maintainable as the same prayers were made in the earlier writ petition WPC/1074/2023. He submits that even in that case, there was a prayer for directing promotion of the petitioner. The learned CGC has otherwise argued that on 10.03.2023, the memo of charges were submitted and on 25.06.2024, the enquiry report has been given. He submits that the Office Memorandum dated 14.09.19