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Judgment
ORDER
PER MR. RAJINDER SINGH DOGRA, MEMBER (J):
The instant O.A. has been preferred by the applicant seeking the following relief(s):
“8.1.to allow the present Application;
8.2.to direct the Respondents to grant ad-hoc promotion to the Applicant to the post of Commissioner with effect from 10.07.2024;
8.3.to grant all consequential benefits to the Applicant as permissible in law, including Salary and Allowances of the promoted post of Commissioner with effect from 10.07.2024
8.4.to direct the Respondent to pay suitable compensation to the Applicant as this Hon’ble Tribunal deems fit and proper in the circumstances of the case;
8.5.to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case.”
The brief facts of the case submitted as per OA are that the applicant is a Direct Recruit Officer of 2000 Batch of the Indian Revenue Service (Customs and Central Excise), under the control of the Respondent Ministry. He was promoted as Deputy Commissioner in the Year 2005, as Joint Commissioner in the year 2010 and as Additional Commissioner in the year 2013. While working as Joint Director in the Enforcement Directorate, Ahmedabad, the applicant tried his best to follow the Rule of Law, making him very unpopular amongst money launders, who were conducting illegal business. The applicant was, therefore, framed by certain unscrupulous persons, which included the insiders and outsiders. On the basis of bogus complaint against the applicant, the Central Bureau of Investigation was made to conduct searches in the Office and Residence of the applicant on 23.09.2015. Not a single incriminating document or recovery was made during the search. All of a sudden, applicant was relieved from the Enforcement Directorate on 07.10.2015 with a direction to join his parent Department. Thereafter, on 25.10.2015, the applicant was transferred/posted to Shillong by the Respondents. On the basis of the complaint, Central Bureau of Investigation, Delhi investigated the issue. The applicant was called after one year in February, 2017 from Guwahati to Delhi to participate in the investigation. All of a sudden on 20.02.2017, applicant was arrested by the Central Bureau of Investigation and sent to Police (Central Bureau of Investigation) Custody. The applicant was placed under deemed suspension vide Order dated 08.03.2017 [Annexure: A-5], with effect from 20.02.2017, under Rule 10(2)(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Applicant was granted Bail by the Criminal Court vide Order dated 30.06.2017.
As per the applicant, his suspension had been extended several times, vide various Orders and same was continued till it was revoked on 10.07.2024 [Annexure: A-3]. Applicant has further stated that he was issued a Major Penalty Charge Sheet by the Respondents on 15.03.2018. Another Major Penalty Charge Sheet dated 25.05.2021 was issued to the applicant by the respondents. The Applicant sought Personal Hearing of the Disciplinary Authority in both the Charge Sheets and when the same was not agreed to, the Applicant approached the CAT, Principal Bench by filing OA Nos. 3250 of 2018 & 2401 of 2022, which were disposed of vide orders dated 30.08.2018 and 16.09.2022 directing the respondents to give a Personal Hearing to the applicant. Said two orders were assailed by the respondents before the Hon'ble High Court of Delhi by filing WPC No. 4566 of 2023 and there is no stay against holding of the enquiry, and the Respondents have not proceeded with the enquiry. Also in the Criminal Case against the Applicant, there has been a Stay by the Hon'ble High Court of Gujarat, as the Central Bureau of Investigation has failed to provide the Documents to the Applicant.
Applicant has further pleaded that his case for promotion has been placed in Sealed Cover. However, the Respondents have not granted the applicant ad-hoc promotion though the suspension of the applicant had been revoked vide Order dated 10.07.2024, when he was eligible for the same two years after the promotion of his Batch Mates as mandated in the Rules. Hence, the inaction of the respondents is bad in law as the respondents have failed to carry out the Six Monthly Review of the Sealed Cover Cases. The inaction of the respondents is also violative of the judgment passed by the Hon’ble Apex Court in the case of Swaran Singh Chand Vs. Punjab State Electricity Board, 2009 (7) SCALE 622, H.V. Nirmala Vs. Karnataka State Financial Corporation, (2008) 7 SCC 639, Ramana Dayaram Shetty Vs. International Airport Authority, AIR 1979 SC 1628, Judgment and Order dated 28.07.2016 of the Hon’ble High Court of Delhi in W.P.(C) No. 10656 of 2015 (North Delhi Municipal Corporation V. Rakesh Ahuja).
Respondents have filed their written statement and stated that the applicant while posted as Additional Commissioner, was detained by the CBI on 20.02.2017 in connection with to RC No. 3(A)/2015/AC.III/CBI(SIT) and he remained under custody for more than 48 hours. He was placed under deemed suspension from the date of detention i.e. 20.02.2017, vide Order dated 08.03.2017. His suspension was reviewed periodically and extended for 180 days each vide orders dated 16.05.2017, 15.11.2017, 14.05.2018, 01.11.2018, 03.05.2019, then for 90 days vide order dated 04.11.2019 and again for 180 days each vide Orders dated 05.02.2020, 30.07.2020, 20.01.2021, 16.07.2021, 13.01.2022, 22.07.2022, 09.01.2023, 17.07.2023 and 15.01.2024. Subsequently, his suspension was revoked w.e.f. 14.07.2024 vide order dated 10.07.2024. However, prayer of the applicant for grant of ad-hoc promotion to the post of Commissioner with effect from 10.07.2024 along with consequential benefits is not sustainable on the point of law as well as on fact. Further, the Respondents have acted strictly in accordance with the applicable rules and DoP&T OM dated 14.09.1992 keeping in mind the disciplinary and criminal proceedings pending against the Applicant including his suspension from 20.02.2017 till 14.07.2024. Consequently, the Applicant's promotion to the grade of Joint Commissioner on regular basis was rightly withheld. Resultantly no entitlement for further promotion to the grade of Commissioner arises and accordingly the OA deserves dismissal.
Respondents have contended that since the applicant was not regularized in the grade of Joint Commissioner, as such, his name was not considered for promotion to the grade of Commissioner. Hence, the question of review in terms of DoP&T OM dated 14.09.1992 does not arise. Moreover, this is a case of allegation of bribe which no doubt is grave enough to warrant continued denial of promotion. In case he gets exonerated in the criminal and disciplinary proceedings pending against him, the sealed cover for promotion to the grade of Joint Commissioner on regular basis will be opened and given effect. Thus his case can be considered for promotion to the grade of Commissioner of Customs and Indirect Taxes only thereafter.
Respondents further contended that the applicant was considered for regular promotion to the grade of Joint Commissioner by the DPCs held in the UPSC on 27.02.2019 (2010 118 2011-12), 30.03.2022 (2012-13 to 2014-15), 29.12.2022 (2015 16), 18.03.2024 (2016-17 to 2018), 02.07.2024 (2019), 28.11.2024 (2020 to 2022) and 19.03.2025 (2023-2025). These DPCs kept their recommendations in sealed covers for Vacancy years 2010-11 to 2025 due to criminal and disciplinary proceedings pending against him in the CBI registered case vide RC 03(A)/2015/AC-III/New Delhi on 22.09.2015 against the applicant, the then Joint Director, ED, Gujarat alleging corrupt practices in the Afroz Fatta case and the Cricket Betting case under his supervision. He was accused of accepting large bribes in exchange for favorable actions during investigations. He was arrested on 20.02.2017 in connection with the CBI case and placed under deemed suspension from that date but his suspension was revoked with effect from 14.07.2024.
Applicant has filed rejoinder and highlighted various case rulings/citations in support of his case.
Respondents have also filed reply to the rejoinder and reiterated that the applicant has not yet been regularly promoted or regularised in the feeder grade of Joint Commissioner. Because his regular status in the intermediate tier is un-established, he cannot legally be considered for promotion to the higher grade of Commissioner. The respondents submit that the guidelines under DoPT OM dated 14.09.1992 have been followed strictly, and the question of regular or ad-hoc promotion to the tier of Commissioner will only arise if the applicant is fully exonerated and his sealed covers for the feeder grade are opened and given effect.
We have heard Shri T.R. Mohanty, learned counsel for the applicant and Ms. M. Bhattacharjee, learned Addl. CGSC for the respondents and scrutinized the whole conspectus of the case.
It is noted that present applicant has also filed another O.A. No. 33/2025 before this Tribunal for a direction upon the respondents to treat his suspension period (20.02.2017 to 09.07.2024) as Spent on Duty for all purposes. After hearing both parties, said O.A. was allowed vide order dated 12.06.2026 with the following directions:
“13.Having heard the learned counsel for the parties and after perusal of the records, we are of the considered opinion that while the respondent department dealing with the case of the applicant, though has revoked the suspension of the applicant but has left the treatment of suspension period and pay/allowance during that period for review after the conclusion of disciplinary proceedings in terms of FR 54-B(i) & (6). In view of the facts and circumstances of this case as well as the position of law elaborated in preceding paragraphs, we deem it appropriate to direct the respondents to decide applicant’s suspension including his pay and salary and regularise the suspension period within a period of three months from the date of receipt of copy of this order. If applicant is still aggrieved with the action of the respondent authority, he is at liberty to approach the appropriate forum within a period of three months thereafter. 14. Accordingly, the O.A. stands allowed. 15. Pending, M.As, if any, also stands disposed of. No order as to costs.”
It is an admitted position that the applicant is working as Additional Commissioner in the office of Chief Commissioner of Central Goods and Service Tax and Customs, Guwahati. Now, by way of filing this O.A., he is seeking ad-hoc promotion to the post of Commissioner with effect from the date of revocation of suspension i.e. 10.07.2024. It is also admitted position that the criminal case against applicant is pending in the Court of Law. Though Chalan has been submitted in the Court but Charge sheet has not been framed against the applicant till date. Now the applicant is seeking that ad-hoc promotion of Commissioner can be given to him. In the earlier DPC, which was held in 2019, his case was kept in sealed cover and thereafter, as per OM of the DOPT dated 14.09.1992, sealed cover procedure be examined every six months, which has not been examined by the respondents in the instant case since last six years.
While the applicant has raised concerns regarding the lack of six-monthly reviews of his sealed cover case, such a procedural omission by the department does not create a substantive right to a promotion for which the employee is fundamentally ineligible under statutory recruitment rules. If the applicant is ultimately cleared of the criminal charges and disciplinary inquiries, his sealed covers will be opened, and he will be entitled to notional promotion and seniority from the date his peers were promoted. Only after such regularisation takes effect can his eligibility for the post of Commissioner be considered.
In view of the above facts, we are not inclined to direct the respondents to grant ad-hoc promotion to the applicant because he is already working as ad-hoc in the post of Additional Commissioner. An ad-hoc employee cannot legally be promoted to a higher post (on an ad-hoc or regular basis) until and unless their appointment to the feeder post is regularized. In view of the factual matrix and settled legal principles of service jurisprudence, the applicant cannot claim ad-hoc promotion to the post of Commissioner while his status in the lower feeder grade remains unregularised and bound by sealed cover proceedings.
However, in the interest of justice, we direct the respondent department to act and review the sealed cover of the DPCs in respect of the applicant as per the OM of the DOPT dated 14.09.1992 and take appropriate action within a period of three months from the date of receipt of a copy of this order.
With the above observations and directions, O.A. stands disposed of. Pending M.A. if any, also stands disposed of. No order as to costs.