The sealed cover procedure for promotion can only be applied after a charge memo is served or a charge-sheet is filed, and the date of initiation of judicial proceeding is the date of submission of charge-sheet before the competent court.

JUDGMENT :

S.N. Prasad, J.

This writ petition is under Articles 226 and 227 of the Constitution of India having been preferred by the State of Odisha assailing the order dtd.25.6.2015 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No.1568 of 2014 whereby and where under the authorities have been directed to consider the case of the opposite party – applicant for promotion to the cadre of Executive Engineer (Civil) and if he is found suitable by the departmental promotion committee, be given promotion to the said post from the date his immediate junior got such promotion i.e. w.e.f. 31.07.2014 with an observation that such promotion shall be made purely on ad hoc basis, subject to the final outcome of the Vigilance Case.

2. The brief facts of the case of the opposite party – applicant is that while he was continuing as Asst. Executive Engineer, became eligible to be considered for promotion to the post of Executive Engineer but he has been involved in a Vigilance case instituted against him for the offence U/s.13(2) read with Section.13(1)(e) of the Prevention of Corruption Act, 1988 and U/s.109 of the Indian Penal Code, as such without considering his case, juniors to him have been granted promotion, hence he approached the authority but when his grievance has not been redressed, approached to the Tribunal for redressal of his grievance vide O.A. No.1568 of 2014 wherein the Tribunal, after taking note of the judgment rendered in the case of Union of India Vrs. K.V. Jankiram and Others, reported in (1991) 4 SCC 109, has passed the order directing the authorizes to consider the case of the petitioner by taking into consideration the fact that although cognizance has been taken, but no charge-sheet has been served to the opposite party – applicant on the due date of consideration, hence the finding has been given entitling him to get promotion to the cadre of Executive Engineer (Civil) and accordingly direction has been passed to grant him promotion if found suitable by the departmental promotion committee with effect from the date when his juniors have been granted such promotion, however, with the observation that the promotion be made purely on ad hoc basis subject to the final outcome of the vigilance case.

3. It has been submitted by the learned counsel for the opposite party – applicant that the tribunal has committed no illegality in passing such direction, rather the same is strictly in accordance with the propositions laid down by Hon’ble Apex court in the case of K.V. Jankiraman (supra).

He fortified his argument by submitting that since the charge-sheet has not been supplied to the opposite party - applicant on the due date of consideration by the duly constituted departmental promotion committee, hence he is coming under the parameter of the proposition laid down therein by the Hon’ble Apex Court and accordingly the tribunal has passed the order, hence the same suffers no infirmity.

4. While on the other hand, learned Additional Government Advocate representing the State of Odisha, assailing the order passed by the tribunal, has submitted that the tribunal has misconstrued the proposition laid down by Hon’ble Apex Court in the case of K.V. Jankiram because in that case the proposition has been laid down that merely on the ground of pendency of a disciplinary or criminal proceeding consideration for promotion cannot be with-held and the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed in the criminal court, but the tribunal, ignoring the said proposition, has gone into the finding reflected in the order of Hon’ble Apex Court in the case of K.V. Jankiraman rendered by its Full Bench which stipulates that it is only when a charge memo in a disciplinary proceeding or a charge sheet in criminal prosecution is issued to the employee then only it can be said that the departmental proceeding/the criminal prosecution i