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Judgment
ORDER
By Justice Rajiv Joshi, Member (Judicial):-
Heard Shri Jaswant Singh, learned counsel for the applicant and Shri Shalvin assisted by Shri Abhishek Kumar Mishra, learned counsel for the respondent-5 & 7 and Shri Devendra Narayan Pandey, learned counsel for the rest of the respondents at the time of hearing of the case.
By way of this original application, the applicant has sought the following reliefs:-
"i)… to direct the respondents for promotion of applicant to the post of Joint General Manager (JAG) has been kept on seal cover due to registration of FIR No.0389/2025 dated 03.09.2025 by opening the seal cover of applicant for promotion to the post of JAG and promote him on the said post with all consequential benefits.
(ii)Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicants.
(iii)Award the cost of the Original Application. "
The brief facts of the case, as stated in the Original Application, are that the applicant is presently working as Deputy General Manager (DGM) at Ordnance Equipment Factory, Hazratpur. The applicant is a Group-A Gazetted Officer of the Indian Ordnance Factories Service (IOFS) and belongs to the 2011 batch. He joined the IOFS on 02.03.2015 as Assistant Works Manager (AWM). He was promoted to the post of Sr. Time Scale (STS) (Works Manager) on 01.04.2017 and was subsequently granted STS (Non-Functional) in the grade of DGM w.e.f. 01.04.2022.
The applicant was due for promotion to the post of Joint General Manager (JAG) in Pay Level-13 w.e.f. 01.01.2026, along with his batch-mates of the 2011 and 2012 batches of IOFS. However, on 03.09.2025, a First Information Report (FIR) was lodged against the applicant by a contractual employee, allegedly as a retaliatory act. Thereafter, no departmental proceedings were initiated against the applicant, nor had any charge-sheet been filed in the criminal case till the date of the meeting of the Departmental Promotion Committee (DPC), which was held on 29.12.2025 for consideration of promotion to the post of JAG. The respondents, vide order dated 31.12.2025, promoted 99 officers to the post of JAG; however, the name of the applicant did not find place in the said promotion order, despite his being placed at Serial No. 8 in the DPC assessment list. Prior thereto, the applicant had submitted a representation dated 09.12.2025 before the respondents, requesting issuance of vigilance clearance for consideration of his promotion to the said post.
Aggrieved by the non-inclusion of his name in the promotion order, the applicant filed an application under the Right to Information Act, 2005 on 01.01.2026. In response thereto, the CPIO, vide letter dated 29.01.2026, supplied the Minutes of the Meeting of the DPC held on 29.12.2025, from which the applicant came to know that his case for promotion had been kept in a sealed cover. Subsequently, the applicant submitted representations dated 02.01.2026 and 05.01.2026, contending therein that mere registration of an FIR or pendency of an investigation cannot, by itself, constitute a ground for withholding vigilance clearance, denying promotion, or keeping the case of an employee in sealed cover. However, no heed was paid to the aforesaid representations. Hence, the present Original Application has been filed.
On the other hand, short counter affidavit has been filed from the side of the respondent 5 & 7 on 04.08.2026, wherein it has been stated that the answering respondents had no role whatsoever in the constitution of the DPC, assessment of the Applicant's suitability, consideration of vigilance status, adoption of the sealed cover procedure, preparation of the select panel, or issuance of the promotion order dated 31.12.2025. All such actions were undertaken by the competent authorities in accordance with the applicable service rules and the instructions issued by the Department of Personnel and Training (DoPT). The role of Respondent - 5 was confined to furnishing factual information available in the official records whenever requisitioned by the competent vigilance/administrative authorities. Accordingly, in response to the requisition received through the Director General of Ordnance (Coordination & Services) Comnet Vigilance Portal, Respondent-5 furnished the Vigilance Clearance Proforma dated 10.11.2025. The said Proforma correctly reflected that FIR No. 0389 dated 03.09.2025 had been registered against the Applicant at Police Station Tundla, District Firozabad, no departmental disciplinary proceedings had been initiated or were pending against the Applicant at that time or at present.
It is submitted that according to the report dated 29.07.2026 submitted by the Applicant himself to the Chief General Manager, Ordnance Clothing Factory, Shahjahanpur, the police charge-sheet was submitted on 16.02.2026 before the competent criminal court.
A short Counter Affidavit has been filed on behalf of the respondents on 10.08.2026, wherein it has been stated that an FIR was registered against the applicant on 03.09.2025 at Police Station Tundla under Sections 115(2), 126(2), 352 and 351(2) of the BNS. As per the report dated 07.04.2026, evidence relating to the aforesaid offences was found, and Charge-sheet No. 43/2026 was filed in the matter on 15.02.2026. Admittedly, no departmental disciplinary proceedings have been initiated against the applicant in the matter. The DPC was held on 29.12.2025 and, on the said date, investigation pursuant to the aforesaid FIR was pending in compliance with the direction of the learned CJM, Firozabad, dated 08.08.2025. The FIR had been lodged prior to the date of the DPC; however, the charge-sheet was filed subsequently on 15.02.2026. Thus, according to the respondents, the criminal case was pending against the applicant on the date of the DPC, i.e., 29.12.2025.
The case of the applicant was considered by the DPC for promotion and, in view of the pendency of the criminal case, the recommendations of the DPC were placed in a sealed cover in accordance with the Office Memorandum dated 14.09.1992. The said Office Memorandum specifically provides that where a charge-sheet has been issued and disciplinary proceedings are pending, or prosecution for a criminal charge is pending, the matter is to be brought to the notice of the DPC and the assessment of the officer is to be kept in a sealed cover. The sealed-cover procedure is to continue until the conclusion of the disciplinary proceedings or criminal case. Therefore, the applicant cannot claim that the sealed cover should be opened merely on the ground that the charge-sheet in the criminal case was filed after the date of the DPC. Hence, the present Original Application is liable to be dismissed.
In reply, rejoinder affidavit has been filed from the side of the applicant on 12.08.2026, in which he has reiterated the averments as made in Original Application.
Learned counsel for the applicant submitted that the respondents have not initiated any departmental proceedings against the applicant, which itself demonstrates that no disciplinary proceedings were pending against him on the date of the DPC. The respondents have wrongly interpreted and applied the DoPT Office Memorandum dated 14.09.1992. Mere registration of an FIR or pendency of an investigation cannot, by itself, be treated as pendency of a criminal prosecution so as to justify resort to the sealed-cover procedure. In the present case, neither any departmental charge-sheet nor any criminal charge-sheet had been issued/filed against the applicant on the date of the DPC.
Learned counsel for the applicant further submitted that the DoPT, vide Office Memorandum dated 02.11.2012, has clearly stipulated that the sealed-cover procedure is to be resorted to only in the circumstances prescribed therein, including where a charge memorandum/charge-sheet has been issued in disciplinary proceedings or the officer has been placed under suspension. The pendency of a preliminary investigation prior to such stage is not sufficient to justify adoption of the sealed-cover procedure. Therefore, the action of the respondents in keeping the applicant’s case in sealed cover merely on the basis of a pending investigation is contrary to the aforesaid instructions.
Learned counsel for the applicant further submitted that, admittedly, no departmental proceedings had been initiated against the applicant and no charge-sheet or memorandum of charges had been issued to him as on the date of the DPC, i.e. 29.12.2025. Although the FIR was registered on 03.09.2025, the police charge-sheet was filed only subsequently, on 15/16.02.2026. Thus, on the relevant date, there was neither any departmental charge-sheet nor any criminal charge-sheet pending against the applicant. The subsequent filing of the charge-sheet cannot retrospectively justify the action taken by the respondents on 29.12.2025.
Learned counsel for the applicant further submitted that the adoption of the sealed-cover procedure was wholly unjustified and reflects non-application of mind on the part of the respondents. Since the applicant had been duly considered by the DPC and was placed at Serial No. 8 in the assessment list, his case ought to have been decided in accordance with the applicable instructions. It was, accordingly, prayed that the sealed cover be opened and the applicant be granted the consequential benefit of promotion, if found fit, from the date his juniors/batch-mates were promoted.
Per contra, learned counsel appearing for Respondent Nos. 5 and 7 submitted that they had no role whatsoever in the constitution of the DPC, assessment of the applicant’s suitability, consideration of his vigilance status, adoption of the sealed-cover procedure, preparation of the select panel, or issuance of the promotion order dated 31.12.2025. Their role was confined to furnishing factual information available in the official records whenever requisitioned by the competent vigilance/administrative authorities. Accordingly, Respondent No. 5 furnished the Vigilance Clearance Proforma dated 10.11.2025 through the DoO (C&S) ComNet Vigilance Portal, correctly reflecting the registration of FIR No. 0389 dated 03.09.2025 against the applicant and also the fact that no departmental disciplinary proceedings had been initiated or were pending against him at the relevant time.
Learned counsel appearing for the remaining respondents submitted that the case of the applicant was duly considered by the Departmental Promotion Committee (DPC) held on 29.12.2025; however, in view of the pendency of the criminal investigation arising out of FIR dated 03.09.2025, the recommendation of the DPC in respect of the applicant was rightly kept in sealed cover in accordance with the DoPT Office Memorandum dated 14.09.1992. The sealed-cover procedure is applicable where prosecution for a criminal charge is pending and investigation pursuant to the FIR was pending on the date of DPC.
Learned counsel for the remaining respondents further submitted that the FIR had already been registered against the applicant prior to the date of the DPC and the investigation pursuant thereto was pending on 29.12.2025. The subsequent filing of the charge-sheet on 15/16.02.2026 only culminated the investigation and does not alter the factual position that an investigation into a criminal case was pending when the DPC considered the applicant’s case. Therefore, the applicant cannot claim that the sealed-cover procedure was illegally adopted merely because the charge-sheet was filed after the meeting of the DPC.
Learned counsel for the remaining respondents further submitted that the competent authorities acted bona-fide and strictly in accordance with the applicable rules and instructions, and no mala-fide or arbitrariness can be attributed to the respondents. The applicant has, therefore, failed to establish any illegality in the action of the respondents in keeping his assessment in sealed cover. Accordingly, learned counsel prayed that the Original Application, being devoid of merit, be dismissed.
We have heard the rival submissions of the parties and perused the record.
It is not in dispute that an FIR was registered against the applicant on 03.09.2025 and that the Departmental Promotion Committee (DPC) for consideration of promotion to the post of JAG was held on 29.12.2025. It is also an admitted position that, as on the date of the DPC, no departmental disciplinary proceedings had been initiated against the applicant and no charge-sheet had been issued to him in any departmental proceeding. Further, the police charge-sheet in the criminal case was filed only subsequently, on 15/16.02.2026.
The short question which arises for consideration is whether mere registration of an FIR and pendency of investigation, without filing of a charge-sheet in the criminal case or initiation of departmental proceedings, could justify resort to the sealed-cover procedure. The respondents have relied upon the DoPT O.M. dated 14.09.1992, which was issued in light of the order of the Apex Court passed in Union of India Vs. K.V. Jankiraman, reported in AIR 1991 SC 2010 and as such, for better appreciation of the matter, OM dated 14.09.1992:-
At the time of consideration of the cases of Government servants for promotion, 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; and
(iii)Government servants in respect of whom prosecution for a criminal charge is pending.
On a bare perusal of OM dated 14th September, 1992, which covers the issue, it is clear that it prescribes the conditions under which the assessment done by the DPC is to be kept in the sealed cover. According to this OM, the sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and Government servants in respect of whom prosecution for criminal charge is pending.
Similar issue fell for consideration before the Apex Court in case of Union of India & ors. Vs. K.V. Janki Raman (supra), wherein it was held that sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued. The relevant extract is reproduced hereinbelow:
“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.”
(emphasis supplied)
In the case of Dineshwar Shukla Vs. State of U.P. 2018 (1) ADJ 602 (DB)(LB) Allahabad High Court (Civil Misc. Writ Petition (S/B) No. 23751 of 2017 decided on 4th December, 2017), the High Court of Allahabad, Lucknow Bench has held as under:-
“In the case of Union of India and others Vs. Dr. Sudha Salhan (Smt.); (1998) 3 SCC 394 the Apex Court after considering the observation made by a Three Judge decision in Union of India and Ors. Vs. K.B. Jankiraman & Ors. (1991 (4) SCC 109, held 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 on 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. Admittedly, at the time of considering the candidature of the petitioner i.e. on 07.09.2016, for promotion to the post of Chief Engineer Level-II nothing adverse was existing on record against the petitioner as the charge-sheet dated 28.09.2016 was served upon him vide letter dated 17.10.2016 of the Inquiry Officer. As a matter of fact, the Departmental Promotion Committee in its meeting dated 07.09.2016 had already considered and recommended the name of the petitioner for promotion. Subsequent issuance of charge-sheet and punishment has no relation with the recommendation of the Departmental Promotion Committee for promotion to the post in question and, therefore, there is no justifiable reason for denying promotion to the petitioner. For the reasons stated above, the State Government is directed to examine the claim of the petitioner for promotion to the post of Chief Engineer, Level-II in the light of the observation made hereinabove together with the recommendation of the Departmental Promotion Committee dated 07.09.2016 and if any person junior to the petitioner has been promoted on the post of Chief Engineer, LevelII, the petitioner shall also be promoted to the said post from the same date. The exercise in this regard shall be completed within a fortnight from the date of production of certified copy of this order.”
In the case of Yogendra Singh Yadav Vs. State of U.P and others reported in 2023 (2) ESC 629 (All), the Allahabad High Court has held as under:-
“11.The Supreme Court considered the question as to when for the purpose of Sealed Cover Procedure, the disciplinary / criminal proceedings can be said to have commenced, and the Court observed that it is only when Charge Memo is issued in disciplinary proceedings or a Charge Sheet is filed in a Criminal Court it could be said that disciplinary proceedings / criminal proceedings are pending against the employee concerned. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authority to adopt the Sealed Cover Procedure. The Court also considered the contentions raised by the Counsel for the appellant (Union of India) that where there are serious allegations it takes time to collect necessary evidence and to prepare and issue a Charge Memo/ Charge Sheet and it would not be in the interest of purity of Administration to award the employee with the promotion, increment etc., but observed that such argument did not impress their Lordships. It was observed as follows:-
"..........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 chargememo/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 employees 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......."
Considering the above law laid down by the Apex Court and High Court of Allahabad, it can comfortably observed that the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. In the present case, when the DPC considered the applicant’s case, neither any departmental charge-sheet/charge memorandum had been issued against him nor had any charge-sheet been filed by the police before the competent criminal court. Mere pendency of investigation pursuant to registration of an FIR cannot, by itself, be treated as pendency of prosecution so as to attract the sealed-cover procedure. The subsequent filing of the police charge-sheet on 15/16.02.2026 is a subsequent event and cannot retrospectively validate the action taken by the respondents on 29.12.2025.
It is further evident from the record that the applicant was duly considered by the DPC and was placed at Serial No. 8 in the assessment list, but his recommendation was kept in sealed cover solely on account of the pending criminal investigation. In the absence of a departmental charge-sheet or criminal charge-sheet on the date of the DPC, we are of the considered view that the respondents were not justified in resorting to the sealed-cover procedure in respect of the applicant. Accordingly, the action of the respondents in keeping the applicant’s assessment in sealed cover is held to be unsustainable in law.
In view of the above discussions, the present Original Application is allowed. The respondents are directed to open the sealed cover containing the recommendation of the DPC dated 29.12.2025/31.12.2025 in respect of the applicant and take consequential action in accordance with law. In case the applicant has been found fit for promotion, he shall be granted promotion to the post of JAG from the date his immediate juniors were promoted, along with consequential benefits, including fixation of pay and seniority, as admissible under the rules.
The aforesaid exercise shall be completed within a period of twelve weeks from the date of receipt of a certified copy of this order.
No order as to costs.
All the related MAs stand disposed of.