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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Jyotsna Rewal Dua, J.
Jyoti Swarup Sharma - Appellant
Versus
State of Himachal Pradesh - Respondent
CWP No. 6350 of 2022
Decided On : 15-05-2025
(A) Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 14 - Prevention of Corruption Act, 1988 - Sections 7 and 13(2) - Indian Penal Code - Sections 420, 468, 471, 406, 409, 411, 201, 217, 218 & 120-B - Promotion withheld due to pending disciplinary proceedings - Sealed cover procedure improperly applied as no charge-sheet was issued at the time of DPC meeting - Court emphasized that promotion cannot be denied merely due to pending proceedings unless a charge-sheet is issued. (Paras 4(i)(a), 4(i)(b), 4(i)(c))
(B) Disciplinary proceedings - Initiation of proceedings only upon issuance of charge-sheet - Delay in finalizing proceedings leads to unjustified withholding of promotions - Court directed to open sealed cover and act on DPC recommendations. (Paras 4(i)(d), 5)
Facts of the case:
The petitioner, a retired Excise & Taxation Officer, sought promotion that was withheld due to disciplinary proceedings stemming from allegations of corruption. The first inquiry found charges not proved, yet a second inquiry was initiated without resolving the first. The petitioner challenged the sealed cover procedure used to deny his promotion.
Findings of Court:
The court found that the sealed cover procedure was improperly applied as no charge-sheet was issued at the time of the DPC meeting. The court directed the respondent to open the sealed cover and take action on the DPC recommendations within three weeks, ensuring the petitioner receives all consequential benefits.
Issues: The main issues addressed were the legality of the sealed cover procedure and the delay in disciplinary proceedings affecting the petitioner's promotion.
Ratio Decidendi: The court ruled that disciplinary proceedings must be initiated with a charge-sheet for the sealed cover procedure to apply, and that undue delay in proceedings unjustly affects an employee's promotion rights.
Result: Writ petition disposed of with directions to open sealed cover and act on DPC recommendations.
Key Points: - The judgment holds that promotion cannot be withheld merely due to pending disciplinary/criminal proceedings; a charge-sheet must be issued for sealed cover to apply. (!) (!) (!) - It directs to open sealed covers where no charge-sheet was issued at the time of the DPC meeting and to act on DPC recommendations within a specified timeframe. (!) (!) - It emphasizes expeditious finalization of disciplinary/criminal proceedings and provides six-month/periodic review guidance to minimize sealed cover use. (!) (!) (!)
JUDGMENT :
Jyotsna Rewal Dua, J.
1. Petitioner retired on 31.03.2023 on attaining the age of superannuation during the pendency of this writ petition. While in service, the respondent on 23.02.2015, kept his case for further promotion/regularization etc. in sealed cover contemplating holding disciplinary proceedings and awaiting the outcome of criminal proceedings launched against him. The charge-sheet was issued to the petitioner on 30.08.2017. The Inquiry Officer in his report dated 28.01.2019, held the charges leveled against him as ‘not proved’. It was on 09.07.2021 that the disciplinary authority expressed disagreement with the inquiry report. Whereas, even before that, fresh and revised memorandum of charges had been issued to the petitioner on 11.06.2019. A new Inquiry Officer was appointed to inquire into the second charge-sheet issued to the petitioner. Petitioner participated in the second inquiry proceedings. While the same were going on, he instituted this writ petition seeking direction to the respondent to consider him for promotion. The second Inquiry Officer submitted inquiry report on 09.11.2023. More than 17 months have gone by, the disciplinary authority is yet to take a decision on the inquiry report.
2. Background facts may be noticed first:-
(i) Petitioner joined the respondent-State Taxes and Excise Department as Excise & Taxation Inspector on 10.06.1987. On 28.07.2011, on the recommendations of the Departmental Screening Committee, he was promoted as Excise & Taxation Officer (Class-I Gazetted) on ad hoc basis as a stop gap arrangement.
(ii)While the petitioner was posted as Excise & Taxation Officer (ETO) at Baddi, FIR No.9/2014 was registered against him on 24.12.2014 at Police Station, State Vigilance & Anti Corruption Bureau, Solan under Sections 7 and 13(2) of the Prevention of Corruption Act . Petitioner was alleged to have demanded illegal gratification to the tune of Rs.12,000/- for releasing F.D.R. and for blocking the TIN of M/s Bansal Crane Service, Baddi. On this account, the petitioner was suspended on 13.01.2015.
(iii) A meeting of the Departmental Promotion Committee (DPC) for regularization of ad hoc ETOs and promotion as Assistant Commissioner, State Taxes and Excise (ACSTE), was convened on 23.02.2015, but due to FIR No.9/2014 having been registered against the petitioner, the DPC kept his case for promotion from ETO/ACSTE on ‘ad hoc basis’ to ETO/ACSTE on ‘regular basis’ in a sealed cover. On the basis of recommendations of the DPC, 51 ad hoc ETOs/ACSTEs including the seniors and juniors of the petitioner were regularized.
(iv) Petitioner’s suspension was revoked on 18.09.2015 and he was posted as Excise & Taxation Officer on ad hoc basis.
(v) Another FIR, bearing No.9/2016, was registered against the petitioner on 03.04.2016 underSections 420, 468, 471, 406, 409, 411, 201, 217, 218 & 120-B of the Indian Penal Code and Sections 13(1)(c) & 13(1)(d) of the Prevention of Corruption Act, 1988 at Police Station, State CID, Shimla, however, no departmental proceedings were initiated by the respondent in relation to this FIR.
(vi) On 30.08.2017, the respondent issued memorandum of charges to the petitioner under Rule 14 of theCentral Civil Services (Classification, Control and Appeal) Rules, 1965, containing following article of charge:-
“That Shri Jyoti Swaroop, Excise & Taxation Officer while being posted in Baddi Circle-IV, BBN-Baddi, District Solan, H.P. was arrested at Baddi by the Dy. Superintendent of Police, State Vigilance & Anti Corruption Bureau, (SIU-II) on 24-12-2014 at 06:30 P.M. in the case FIR No.9/2014 dated 24-12-2014 under Section 7 of the PC Act, 1988 registered at Police Station, SV&ACB Solan and remained in Police Custody till 25-12-2014 and thereafter remained in Judicial Custody till 21-01-2015.
The said FIR was registered against Shri Jyoti Swaroop, Excise & Taxation Officer, Baddi Circle-IV, H.P. in connection with accepting bribe/illegal gratification to the tune of Rs.12,000
Promotion cannot be withheld due to pending disciplinary proceedings unless a charge-sheet has been issued; sealed cover procedure must be justified and timely.
Promotion – Sealed Cover Procedure – Disciplinary/criminal proceedings can be said to be initiated against employee only when a charge-memo is issued to employee in a disciplinary proceeding or a cha....
Sealed cover procedure for promotion cannot apply unless formal charges exist. Officers suspended but not charged are entitled to promotion based on DPC's recommendations.
The mere pendency of a criminal case does not justify withholding promotion without formal charges, violating principles of natural justice and discrimination.
Service Law - Non- implementation of order of promotion - Appointments of officers are subject to DAR/Vigilance/ Criminal case clearance by Railways - Officers should be advised that above officiatin....
Selection Committees must not use sealed cover procedures for promotion unless formal charges are framed against an employee, preserving rights to promotion.
Criminal proceedings can be said to be pending against an employee only after charges have been framed.
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