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Judgment
Per: Justice Ranjit More, Chairman:
Since the issue involved in the present O.A. is short and the pleadings are complete, with the consent of learned counsel for the respective parties, we have heard the matter at the admission stage.
The brief facts of the present O.A. are as follows:
The applicant was initially appointed on 18.08.1988 to the post of Assistant Executive Engineer through the Combined Engineering Services Examination, 1986, conducted by the UPSC. The applicant earned several promotions during the course of his service and was due to retire on attaining the age of superannuation on 30.09.2025 as a Superintending Engineer.
The applicant was due for promotion to the post of Chief Engineer in the Military Engineer Services (MES), in Level-14 of the Pay Matrix, for the panel year 2022. The DPC for promotion from the post of Superintending Engineer to that of Chief Engineer for the panel year 2022 was held by the UPSC on 20.05.2022, wherein a total of 23 officers, including the applicant, were recommended against 19 vacancies for the panel year 2022, along with an extended panel of four officers. It is pertinent to note that the applicant was assessed as “FIT” by the DPC.
However, vide communication dated 30.07.2022, the Department of Personnel and Training (DoP&T) conveyed the decision of the Appointments Committee of the Cabinet (ACC), whereby the empanelment of the applicant, along with two other officers, was deferred for promotion to the post of Chief Engineer.
Aggrieved by the aforesaid deferment, the applicant approached this Tribunal by filing O.A. No. 1365/2023. The said O.A. was disposed of by a Division Bench of this Tribunal vide order dated 17.05.2023, directing respondent No. 3, i.e. the Secretary, Ministry of Defence, Government of India, New Delhi, to decide the applicant's representation dated 16.08.2022 within six weeks from the date of receipt of a copy of the said order.
The respondent/competent authority eventually disposed of the applicant's aforesaid representation vide order dated 14.08.2025, making, inter alia, the following observations in paragraphs 4 and 5:
“4 AND WHEREAS, after examination of the case and in light of latest vigilance status received from E-in-C's Branch (i.e. Nodal Department), the following has been concluded.
(i)That the DPC meeting for promotion of Superintending Engineers (SE) to the grade of Chief Engineers (CE) in the IDSE cadre of MEs for the panel year 2022 was held at UPSC on 20.05.2022 in which a total of 23 officers including Shri Arvind Parashar were recommended against 19 vacancies reported for the panel year 2022 along with the extended panel of 04 officers.
(ii)At the time of consideration of his name for promotion by DPC, Shri Parashar was technically clear from vigilance angle, however, there were some remarks about pending investigation by CBI, ACB, Lucknow against his name.
(iii)That the empanelment of Shri Arvind Parashar and two others was deferred, as conveyed vide DOP&T communication dated 30.07.2022.
(iv)That E-in-C's Branch has conveyed that the case against Shri Arvind Parashar is still under investigation by CBI.
5.WHEREAS, since there is no apparent change in the circumstances under which the empanelment was deferred, there is no ground to take up the matter with DoP&T at this stage.”
The applicant has now approached this Tribunal by filing the present O.A., assailing the aforesaid order dated 14.08.2025 as well as the earlier order dated 30.07.2022, whereby his empanelment for promotion to the post of Chief Engineer was deferred.
Mr. Kaushik, learned senior counsel for the applicant, draws our attention to the decisions of the Hon’ble Supreme Court in Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394. He also draws our attention to the DoP&T Office Memoranda dated 14.09.1992 and 02.11.2012 and submits that the applicant was never placed under suspension. He further submits that the case of the applicant does not fall within any of the contingencies contemplated in K.V. Jankiraman (supra) or under the aforesaid Office Memoranda and, therefore, his empanelment for promotion to the post of Chief Engineer could not have been deferred.
Mr. Kaushik, learned senior counsel, lastly places on record the Closure Report in respect of the CBI case, which, upon completion of investigation, was forwarded to the Court of the learned Special Judge, Anti-Corruption, CBI Court No. 5, Lucknow on 30.06.2025. He submits that the criminal case allegedly investigated against the applicant has, thus, culminated into filing of a Closure Report.
In view of the aforesaid submissions, Mr. Kaushik, learned senior counsel, submits that the applicant could not have been deprived of promotion to the post of Chief Engineer. He submits that, since the applicant has already retired from service on attaining the age of superannuation on 30.09.2025, he may be granted notional promotion to the post of Chief Engineer, along with all consequential benefits.
Mr. Charak, learned counsel for the respondents, contests the present O.A. by filing a counter affidavit. He submits that, based on a complaint regarding alleged irregularities in the recruitment of Mate (SSK) during the years 2009–2012 at CWE, Jhansi, a Staff Court of Inquiry (SCOI) was ordered by the General Officer Commanding (GOC), 21 Corps, which found the concerned officer blameworthy. He further submits that the GOC, 21 Corps thereafter handed over the matter to the CBI, ACB, Lucknow, which registered a Preliminary Enquiry bearing No. PE062020A003 against the applicant. It is further submitted that the Ministry of Defence had already granted prior permission to the CBI on 22.10.2019 for initiating an enquiry/investigation against CWE, Jhansi under Section 17A of the Prevention of Corruption Act, 1988, as amended in 2018. According to the respondents, the matter was under investigation by the CBI and, on the basis of the vigilance remarks recorded against the applicant, his empanelment for promotion to the post of Chief Engineer was deferred.
Mr. Charak, learned counsel for the respondents, however, does not dispute that the applicant was assessed as “FIT” by the DPC conducted by the UPSC. He also does not dispute that, at the time of consideration of the applicant's name for promotion by the DPC, he was technically clear from the vigilance angle, though certain remarks regarding the pending CBI investigation had been recorded against his name by the D&V Section.
Mr. Charak, learned counsel for the respondents, submits that, in view of the aforesaid facts and circumstances, the deferment of the applicant's empanelment was justified and that no interference by this Tribunal is warranted. He, therefore, prays that the present O.A. be dismissed.
We have considered the rival submissions advanced by learned counsel for the applicant and learned counsel for the respondents. We have also perused the pleadings on record. We have further gone through the decisions of the Hon’ble Supreme Court in Union of India v. K.V. Jankiraman (supra) and Union of India v. Dr. Sudha Salhan (supra), as well as the relevant Office Memoranda issued by the DoP&T relied upon by the learned senior counsel for the applicant.
In Union of India v. K.V. Jankiraman (supra), the Hon’ble Supreme Court made the following observations in paragraph 16:
“16.On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39)
“(1)consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2)***
(3)*** (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;”
The aforesaid decision of the Hon’ble Supreme Court was accepted and implemented by the Government, pursuant to which the DoP&T issued Office Memorandum dated 14.09.1992. Paragraph 2 of the said Office Memorandum reads as follows:
“2.At the time of consideration of the cases of Government servants for empanelment details of Government servants in the consideration zone for promotion falling under the following categories should 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;
(iii)Government servants in respect of whom prosecution for a criminal charge is pending.”
The Hon’ble Supreme Court, in Union of India v. Dr. Sudha Salhan (supra), followed the principles laid down in K.V. Jankiraman (supra) and made the following observations in paragraph 6:
“6.The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. v. K.B. Jankiraman and Ors. (1991 (4) SCC 109 in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover' only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or onm its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to.”
Thus, the aforesaid position makes it abundantly clear that the sealed cover procedure can be adopted in the following three contingencies, namely:
where the Government servant is under suspension;
where a charge-sheet has been issued to the Government servant and disciplinary proceedings are pending; and
where criminal proceedings are pending against the Government servant.
The DoP&T issued Office Memorandum dated 14.12.2007 laying down guidelines regarding grant of vigilance clearance in respect of empanelment, deputation, appointment to sensitive posts and assignments to training programmes. The said instructions were subsequently clarified by the Office Memorandum dated 07.07.2008, wherein it was specifically provided that the expression “empanelment” occurring in the Office Memorandum dated 14.12.2007 does not cover cases of promotion and that cases of promotion of Government servants during the pendency of disciplinary proceedings would be governed by the instructions contained in the Office Memorandum dated 14.09.1992 and the subsequent instructions issued in that regard.
It is pertinent to note that the Office Memorandum dated 02.11.2012 undertook a comprehensive review of the instructions relating to vigilance clearance for promotion and reiterated the principles contained in the earlier Office Memorandum dated 14.09.1992, which itself was issued on the basis of the law laid down by the Hon’ble Supreme Court in Union of India v. K.V. Jankiraman (supra). The said Office Memorandum, therefore, is directly relevant for determining the legality of withholding or deferring the applicant’s promotion in the present case.
Mr. Kaushik, learned senior counsel for the applicant, has already submitted that the case of the applicant does not fall within any of the contingencies contemplated under K.V. Jankiraman (supra) or the Office Memoranda dated 14.09.1992 and 02.11.2012. It is not in dispute that the applicant was never placed under suspension. No departmental disciplinary proceedings were initiated against him, nor was any charge-sheet filed against him in the criminal case. In these circumstances, learned senior counsel submits that the deferment of the applicant’s empanelment for promotion to the post of Chief Engineer was contrary to the aforesaid settled principles and, therefore, illegal.
Mr. Charak, learned counsel for the respondents, does not dispute the aforesaid position. However, he submits that the applicant’s empanelment for promotion to the post of Chief Engineer was deferred in view of the investigation being conducted by the CBI into the alleged irregularities in the recruitment of Mate (SSK) during the years 2009–2012 at CWE, Jhansi.
Mr. Kaushik, learned senior counsel for the applicant, in this regard, places on record the Closure Report submitted by the CBI upon completion of investigation, dated 30.06.2025, as well as the communication dated 14.09.2025 addressed by the CBI, ACB, Lucknow to the Engineer-in-Chief. The said communication records that, after completion of the investigation, the Closure Report had been forwarded to the Court of the learned Special Judge, Anti-Corruption, CBI Court No. 5, Lucknow on 30.06.2025. A copy of the said communication has been annexed with the O.A. as Annexure A-6. Paragraphs 19, 22 and 23 of the Closure Report read as follows:
“xix.In the instant case, GEQD has not opined authorship of Answer sheets, however, invigilators in whose presence the written examination was conducted at KV-I & KV-II, Jhansi and they have been examined and they informed that they signed on Answer Sheet/Attendance Sheet of candidates after matching the detail of candidates. During investigation, there is no quid pro quo found amongst the selected candidates and FIR named persons.
xxxxxxxx
xx.In view of above facts and circumstances, it is not established that evaluators given the marks for wrong answer to the candidates intentionally or under mens-rea as they have given marks for wrong answers to both the selected and non selected candidates. It is revealed that some of right answer has not been awarded any marks both the selected and non selected candidates. In the absence of mens-rea, it cannot be said that evaluator board has given marks dishonestly in criminal conspiracy. Further, selected candidates have no role in the marks given for their answer.
xxi.In view of the facts and circumstances of the case and evidence on record, closure report is being filed. It is requested that this Hon'ble Court may kindly be pleased to accept the closure report as well as also pass appropriate order for returning of documents/article/properties to concern quarters in the interest of justice.”
Thus, it is evident that the CBI investigation, on the basis of which the applicant's empanelment had been deferred, was completed and the Closure Report had already been forwarded to the competent Court on 30.06.2025. Therefore, the continuation of the deferment of the applicant's empanelment on the basis of the said CBI investigation cannot sustain in the eye of law, particularly when, admittedly, no charge-sheet had been filed against the applicant and the investigation had culminated in the filing of a Closure Report.
Even otherwise, we are of the opinion that the CBI case against the applicant concerning the alleged irregularities in the recruitment of Mate (SSK) during the years 2009–2012 at CWE, Jhansi, could not, by itself, have constituted a valid ground for deferring the applicant’s empanelment for promotion to the post of Chief Engineer, particularly when, at the relevant time, the applicant was neither under suspension nor facing any departmental disciplinary proceedings, and no charge-sheet had been filed against him in the criminal case.
In view of the law laid down by the Hon’ble Supreme Court in Union of India v. K.V. Jankiraman (supra) and Union of India v. Dr. Sudha Salhan (supra), as well as the aforesaid Office Memoranda issued by the DoP&T, and having regard to the facts and circumstances of the present case, we are of the considered view that the applicant’s empanelment for promotion could not have been deferred merely on the basis of the CBI investigation. The present O.A. is, accordingly, allowed with the following directions:
The impugned order dated 14.08.2025, whereby the applicant’s representation was rejected, and the deferment order dated 30.07.2022, whereby the applicant’s empanelment for promotion to the post of Chief Engineer was deferred, are hereby quashed and set aside.
The respondents/competent authority are directed to consider and grant notional promotion to the applicant to the post of Chief Engineer for the relevant panel year, from the date his immediate juniors were promoted, with all consequential benefits flowing therefrom, in accordance with law.
Pending M.As., if any, shall also stand disposed of.
There shall be no order as to costs.