The court emphasized that an employee's promotion cannot be withheld merely due to pending disciplinary proceedings before a formal charge is issued.

PRAMOD KUMAR DAS, MEMBER (A):

After hearing the parties, we have gone through the pleadings of the OA, counter, rejoinder and documents placed in support thereof including citations relied on by the parties concerned.

2. We find that it is not necessary to go into a detailed discussion in the matter because the applicant earlier filed OA No. 37/2023 before this Bench wherein challenging his non-consideration and promotion of others (officers of 2019 Batch) on the basis of the recommendation of the DPC held on 31.12.2018. In the said matter, the respondents department filed their counter stating therein that his case was considered for promotion to Joint Commissioner on ad hoc basis for the vacancy year 2019 by the DPC held on 31.12.2018 and the finding of the DPC was kept in sealed cover since the applicant was under suspension. Thereafter, DPC was held on 06.12.2019 and 22.12.2020 for promotion to the post of Joint Commissioner on ad hoc basis for the vacancy years 2020 and 2021 but the findings of the DPC in respect of the applicant was again kept in the sealed cover.

3. In compliance of the orders of this Tribunal upheld by the Hon’ble Apex Court, his suspension was revoked w.e.f. 22.07.2019 vide order dated 08.03.2021. DPC met on 14.02.2022 and took into consideration st the vigilance status as on 1 April of the vacancy year for regularization of the eligible officers. The applicant was clear from vigilance angle as on 01.04.2022. He was regularized in the Grade of Dy. Commissioner w.e.f. 01.04.2014 and his name was shown in the seniority list dated 14.03.2022. Thereafter, he was considered for promotion to Joint Commissioner on ad hoc basis against the vacancy year 2022 by the DPC held on 23.03.2022 but the assessment of his case was deferred by the DPC awaiting his update vigilance status.

4. The DPC met on 23.12.2022 for promotion to Joint Commissioner on ad hoc basis against the vacancy year 2023 also deferred his assessment on the ground that vigilance status was not adequate to decide his case. Thereafter, vide order No. 02/23 dated 10.01.2023, prosecution sanction U/s 19 (1)(a) of P.C.Act, 1988 (Amended) was accorded by the competent authority. Accordingly, respondents department contested the case of the applicant in OA No. 37/2023.

5. This Bench after taking note of the submission of the parties, date of events, OMs of DoP&T and the law on the subject, finally, allowed the OA vide “ o11rd. eInr tdhaet einds t0a4nt. 0c9a.s2e0, 2it4 is a tsh eu nspdeecri:f i c case of the Respondents that due to want of vigilance status the DPC deferred the assessment i.r.o. applicant which establishes that the procedure adopted by the DPC was not in accordance with the procedure provided in the DOP&T OM wherein it is specifically provided that Departmental Promotion Committee shall assess the suitability of Government servants taking into consideration grading in APARs along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded by it will be kept in a sealed cover. Pleadings do not show that any such departmental proceedings had ever been initiated against the Applicant. The actual promotion in respect of others were effected vide order dated 11.04.2022 whereas prosecution sanction in criminal case was much thereafter i.e. on 10.01.2023. It is a time honoured principle as early as from the decision in Taylor v. Taylor [(1876) 1 Ch. D. 426] that where statute provides for something to be done in a particular manner it can be done in that manner along and all other modes of performance are necessarily forbidden. Thus, takin