The sealed cover procedure for promotion cannot be applied if no disciplinary or criminal proceedings are pending at the time of the DPC meeting, and subsequent charges do not justify withholding promotion.

ORDER

PRAMOD KUMAR DAS, MEMBER (A):

The facts of the matter as borne out from the record and highlighted by the Ld. Counsel for the applicant in course of hearing are that applicant while continuing as Deputy Commissioner was placed under suspension, in contemplation of disciplinary proceedings, vide order dated 25.10.2018 (A/5). The said order of suspension was subsequently reviewed and allowed to continue from time to time. Meanwhile, DPC was convened on 31.12.2018 for consideration for promotion to Joint Commissioner and his batchmates/juniors were promoted but the recommendation of the DPC with respect to the applicant was kept in sealed cover in terms of DoP&T OM dated 14.09.1992. In compliance of the order of this Bench, upheld by the Hon’ble Apex Court, his suspension order was revoked w.e.f. 22.07.2019 vide order dated 08.03.2021. Hence, it is the case of the applicant that since the recommendation of the DPC, in respect of the applicant, was kept in sealed cover due to his suspension, the order of suspension having been revoked on 22.07.2019. The adoption of sealed cover procedure of the recommendation of the DPC convened subsequently on 31.12.2018 gets nullified and the respondents ought to have acted upon on the recommendation of the DPC. Having not done so, the injustice caused to the applicant allowed to perpetuate which needs to be eradicated. His further case is that admittedly sanction to prosecute against the applicant under section 19 (1)(a) of P.C. Act, 1988 (Amended) was granted vide order number 2/23 dated 10.11.2023 and the charge sheet under Rule 14 of CCA (CCA) Rules, 1965 was also issued to the applicant on 05.11.2024 whereas the DPC was convened on 31.12.2018 and based on such recommendations, the batchmates/juniors of the applicants were promoted to Joint Commissioner on 01.01.2019. It is thus clear that the charge sheet against the applicant was being filed well after the meeting of the DPC was convened. Hence, it could not be said that either the criminal case or disciplinary proceedings was pending against him when the DPC was convened. Therefore, not opening the sealed cover so as to act on the recommendation of the DPC is unjustified, illegal and arbitrary. In this regard, Ld. Counsel for the applicant has also brought to our notice the instruction on comprehensive review pertaining to vigilance clearance for promotion issued by the DoP&T vide OM No. 22034/4/2012-Estt (D- II) dated 23.01.2014. Accordingly, Ld. Counsel for the applicant has prayed for the relief as claimed in this OA for issuance of direction to the respondents to act upon the recommendation of the DPC dated 31.12.2018 without being influenced by the subsequent prosecution sanction on 10.11.2023 and charge sheet dated 05.11.2024.

2. Respondents case is that the applicant has preferred this OA praying for acting on the recommendation of the DPC kept in sealed cover promoting him to the post of Joint Commissioner w.e.f. 23.01.2019 (i.e. the date when his order of suspension was quashed) when his batchmates [2009 Batch of I.R.S. (Customs & Central Excise)]/his juniors were promoted vide order dt. 01.01.2019/30.12.2019. Their stand is that DPC convened on 31.12.2018. Since the applicant was under suspension, the recommendation of the DPC in respect of the applicant was kept in sealed cover in terms of DoPT OM dt. 14.09.1992. CBI filed the FIR against him on 08.01.2020 and prosecution sanction for launching the criminal case against him was accorded on 10.01.2023 and charge sheet under rule 14 of CCS (CCA) Rules, 1965 was issued on 05.11.2024. As per the instruction of the DoP&T vide O.M. No. 22011/2/99-Estt.(A) dt. 22.07.2024, judici