The imposition of a censure does not bar a government employee's entitlement to promotions, and eligibility must be assessed by the DPC considering all circumstances.

O R D E R By Akhil Kumar Srivastava, JM;

The applicant is aggrieved that he has not been granted Non Functional Selection Grade (NFSG) w.e.f.01.01.2004, i.e. after completion of 13 years of service.

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2. Brief facts of the case are that the applicant was initially appointed as Additional Divisional Engineer (Probationer) on 06.01.1992 in Junior Time Scale (JTS). Thereafter he was promoted to the next higher post and presently working as Sr. General Manager (Project) in Bharat Broad Band Network Limited at Indore. On 07.08.2006 (Annexure A-1), the applicant was imposed with the punishment of ‘censure’ for the chargesheet issued to the applicant in the year 2003. Meanwhile, in the year 2004, after completion of 13 years of service, the applicant was eligible for NFSG. However due to pendency of departmental enquiry, the applicant was not granted NFSG and finally on 07.08.2006 after imposition of penalty, the applicant was allowed the benefit of NFSG. The ground for denying NFSG to the applicant w.e.f.01.01.2004 was because of pending departmental enquiry while the fact remains that the applicant was entitled for grant of NFSG w.e.f.01.01.2004.

3. In their reply, the respondents have stated that a charge memo was issued to the applicant on 16.10.2003 and the enquiry was conducted and the finalization of the case took a considerable time because a number of procedures are required to be implemented ANUPA Page 2 of 5 before deciding the case. On enquiry, the charge was not proved against the applicant. But the Disciplinary Authority, not agreed with the enquiry report, sent a disagreement note to the applicant and upon consultation with the UPSC, the penalty of censure was imposed on the applicant. Accordingly, it’s impact on any career progression cannot be questioned under the provisions applicable on promotion/up-gradation during the pendency of a disciplinary case.

4. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.

5. The Office Memorandum dated 21.11.2016 (Annexure RJ-1 along with rejoinder) provides guidelines on treatment of effect of penalties on promotion. The relevant paragraphs of the said OM read as under:

“7(g) In assessing the suitability of the officer on whom a penalty has been imposed, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of general service record of the officer and the fact of imposition of penalty, the officer should be considered for promotion. The DPC, after due consideration, has authority to assess the officer as ‘unfit’ for promotion. However, where the DPC considers that despite the penalty the officers is suitable for promotion, the officer will be actually promoted only after the currency of the penalty is over [paragraph 13 of DoPT OM dated

10.4.1989].

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2. Questions have been raised by the Ministries and Departments asking whether this is applicable in the case of ‘Censure’ also. In this regard, it is reiterated that paragraphs 7(d), 7(f) and 7(g) cited above are applicable in all the recognized penalties under CCS (CCA) Rules including the minor penalty of Censure as well for which no currency has been prescribed, it would mean that as per para 7(g), if the DPC considers the officer fit for promotion notwithstanding the award of censure, he/she can be promoted without referring to the currency of penalty.”

6. The oft quoted Office Memorandum clearly states that “Censure” is not a bar for promotion of a Government servant. In the service jurisprudence, it is well understood that the sealed cover procedure is to be resorted to when the charge- memo/charge sheet is issued to a Government servant when he is due for promotion. However, no such procedure was adopted by the respondents owing to the fact that the applicant was due for grant of NF