The main legal point established in the judgment is that the sealed cover procedure cannot be applied unless a charge sheet is served on the concerned official or filed before the criminal court. Promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee.

1. Petitioner qua whom recommendation of the DPC for promotion was kept in sealed cover has challenged the action of the respondents in keeping the recommendation with regard to his promotion under sealed cover procedure merely on account of registration of FIR No. 215/2011 dated 17.12.2011 under sections 307/380 RPC & 3/25 Arms Act and FIR No. 27/2012 dated 05.02.2012 under Sections 153-A/158/447/427/506/120-B RPC.

2. Learned counsel for the petitioner contends that initially, the case of the petitioner was considered for promotion to the post of Inspector in January 2011 but the petitioner was not found fit for promotion. Subsequently, on representation, the matter was again put up before the DPC which on 30.05.2012 found the petitioner fit for promotion retrospectively w.e.f 27.01.2011. However, the recommendations of the DPC were ordered to be kept in a sealed cover on account of registration of aforementioned two FIRs. Learned counsel contends that challan was filed in FIR No. 215/2011 dated 17.12.2011 on 22nd October, 2013 before the Court of the learned Excise Magistrate, Jammu who, in turn committed the same to the Court of the learned Sessions Judge Jammu on the same day, while in FIR No. 27/2012 dated 05.02.2012, no challan has been filed till date. Learned counsel contends that in the circumstances, the petitioner has been illegally denied the promotion by keeping the recommendations of the DPC for promotion of the petitioner to the post of Inspector under SC category under sealed cover.

3. Mr. W.S. Nargal learned Sr. AAG has referred to Appendix XVII i.e. rules regarding sealed cover procedure to be adopted and has referred to paragraph Nos. 1 and 2 of Appendix XVII. The same are reproduced here under:

“1. Cases where “Sealed Cover” procedure applicable:

At the time of consideration of the cases of Government servants for promotion details of Government servants in the consideration zone for promotion falling under the following categories shall 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 a criminal charge is pending (substitute vide SRO 239 OF 15.07.1997)

2. Procedure to be followed by Departmental Promotion Committee:

The departmental promotion committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending or contemplated against them or where the investigation is in progress. The assessment of the departmental promotion committee including “Unfit for promotion: and the grading awarded by it will be kept in a sealed cover. The findings of the Committee shall be kept secret and opened only after the termination of suspension order or conclusion of the disciplinary case/criminal prosecution/investigation. Till such time as the proceedings remain in sealed cover, the authority competent to fill the vacancy may fill the vacancy in the higher grade only in an Officiating capacity”.

4. On the basis of the same, learned Sr. AAG has contended that the respondents have rightly adopted the sealed cover procedure.

5. I have considered the submissions made by learned counsel for the parties and am of the considered view that the claim of the petitioner must succeed.

6. Paragraph 1 (iii) of the sealed cover procedure stipulates that sealed cover procedure is applicable in the case of a Government servant in respect of whom prosecution for a criminal charge is pending. Although sealed cover procedure was notified by amending Article 110 (A) of CCR vide SRO 153 dated 7th July, 1995, yet paragraph 1(iii) of the sealed cover procedure rules was substituted vide SRO 239 dated 15.07.1997.

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