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Judgment
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-
- “(a) quash and set aside impugned order dated 05.05.2025, 04.07.2023 and 16.06.2023 placed at Annexure A/1, A/2 and A/3 respectively and
(b)direct the respondents to forthwith issue necessary order of applicant’s promotion to the post of Superintending Engineer (Electrical & Mechanical) towards the panel year 2015-2016 and
(c)accord all consequential benefits including monetary and seniority
(d)award costs of the proceedings; and
(e)pass any other order/direction which this Hon’ble Tribunal deems fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.”
FACTS OF THE CASE
As stated by the applicant, he is working as Executive Engineer (E&M) in the Central Public Works Department (CPWD). He joined the CPWD as Assistant Executive Engineer (E&M) on 03.08.2001 and was promoted on ad hoc basis to the post of Executive Engineer (E&M) w.e.f. 05.06.2006 which was regularized on 25.02.2015 with effect from the said date. The dispute in the present O.A. pertains to the applicant’s claim for regular promotion to the post of Superintending Engineer (E&M) against the vacancy year 2015-16. According to the applicant, the crucial date for determining his eligibility for promotion for the said vacancy year was 01.01.2015. However, the Departmental Promotion Committee (DPC) was not convened at the prescribed time and, according to the applicant, there was an administrative delay of more than eight years in considering his case. In the interregnum, the applicant was promoted as Superintending Engineer (E&M) on ad hoc basis against the panel for the vacancy year 2015-16 vide Office Order dated 09.12.2020. Thereafter, pursuant to the review DPC, the applicant's case was considered for regular promotion. The review DPC was held on 19.04.2023 and the applicant was found fit/recommended for regular promotion against the vacancy year 2015-16.
Pursuant to the recommendations of the review DPC, the respondents issued Office Order dated 30.05.2023 whereby the applicant, along with other officers covered by the panels for vacancy years 2007-08 to 2016-17, was promoted from the post of Executive Engineer (E&M) to the post of Superintending Engineer (E&M) on regular basis. However, the said order was kept in abeyance till further orders vide subsequent Office Order dated 31.05.2023, without assigning any reason.
Subsequently, vide revised promotion order dated 16.06.2023 (Annexure A-3), the applicant's name was deleted. Thereafter, vide Office Order dated 04.07.2023 (Annexure A-2), the respondents treated the applicant's case as one of "Deemed Sealed Cover" and consequentially withdrew/reverted him from the promotion granted under the order dated 30.05.2023. The applicant contends that the action of the respondents is primarily based upon a charge-sheet dated 08.03.2021 issued to him in disciplinary proceedings. According to him, the charge-sheet had been issued much prior to the review DPC held on 19.04.2023 and also much after the crucial date of eligibility, i.e. 01.01.2015. He submits that, on the date of actual promotion, i.e. 30.05.2023, none of the circumstances contemplated under the applicable DoP&T instructions for treating a case as “Deemed Sealed Cover” existed, as he was neither under suspension, nor had any charge-sheet been issued after the recommendations of the review DPC, nor was any criminal prosecution pending against him. The applicant further submits that the review DPC had already found him fit on 19.04.2023 and that the recommendations were received before issuance of the promotion order dated 30.05.2023. According to him, none of the three contingencies contemplated under the DoP&T instructions dated 30.08.2022 arose between the date of the review DPC recommendations and the date of actual promotion. He therefore contends that his case could not subsequently have been treated as a deemed sealed-cover case merely on account of the charge-sheet dated 08.03.2021.
It is also the applicant’s case that the disciplinary proceedings arising from the charge-sheet dated 08.03.2021 have remained pending for more than three years. He relies upon the DoP&T OM dated 14.10.2013, which, according to him, requires completion of major penalty proceedings and passing of final orders within 18 months from the date of delivery of the charge-sheet.
The applicant further relies upon the DoP&T OM dated 23.01.2014 concerning vigilance clearance in cases of Review DPC. His contention is that the said instructions specifically deal with vigilance clearance in the context of a Review DPC and, therefore, the respondents could not have applied the general provisions relating to a regular/original DPC to deny him the benefit of the Review DPC recommendations.
The applicant has also alleged violation of the principles of natural justice on the ground that his promotion was withdrawn and his case was treated as deemed sealed cover without issuance of any show-cause notice, without affording him an opportunity of hearing and without giving him an opportunity to represent against the proposed action. In support of the said contention, reliance has been placed upon the judgment of the Hon'ble Supreme Court in K. I. Shephard Vs. Union of India, concerning applicability of the principles of natural justice to administrative action.
The applicant has also referred to the fact that the DPC for the vacancy year 2023 for regular promotion to the grade of Superintending Engineer (E&M) was held in the year 2023 and promotions were subsequently granted vide Office Order dated 29.11.2023. According to him, while his own case had been delayed for more than eight years for administrative reasons and he was eventually promoted pursuant to the Review DPC, the subsequent withdrawal of his promotion has caused him prejudice and loss of status.
The applicant accordingly claims that had his case been considered in accordance with the prescribed model calendar, his regular promotion against the vacancy year 2015-16 would have been considered in time, i.e. around the crucial date of 01.01.2015, and the subsequent charge-sheet dated 08.03.2021 could not have operated to his detriment. He has, therefore, challenged the action of the respondents in withdrawing his promotion and treating his case as a deemed sealed-cover case, and seeks restoration of the promotion order dated 30.05.2023 with consequential benefits.
Pursuant to notice issued by this Tribunal, the respondents have filed reply opposing the claim of the applicant. In response thereto, the applicant has also filed rejoinder.
CONTENTIONS OF THE APPLICANT
Mr. Ajesh Luthra, learned counsel for the applicant, stated that the case of the applicant for promotion pertains to vacancy/panel year 2015-2016 and the applicant was not under cloud for the said year. Pertinently, he was also accorded ad hoc promotion in the year 2020 for the same post and merely because DPC for the year 2015-2016 has been conducted in 2023, he cannot be denied promotion for the said panel year i.e. 2015-2016.
Learned counsel further submitted that the applicant has been considered and found fit for promotion for the vacancy/panel year 2015-2016 and during said year, there were no such proceedings pending against him and as such the chargesheet issued in the year 2021 cannot effect applicant's entitlement to promotion. Para 7 of DoP&T OM dated 14.09.1992 is not attracted in the present case for the simple reason that no circumstances as mentioned in para 2 of said OM has arisen after the recommendations of review DPC have been made. Hence, DoP&T clarificatory OM dated 23.01.2024 has no applicability in the present case.
Learned counsel further submitted that DPC meeting conducted on 05.08.2016 was pointless and infructuous as seniority list for the relevant year 2015-2016 was not available. Availability of seniority list is an essential requirement and pre-condition for holding DPC meeting.
Learned counsel submitted that the issue is no more res-integra and covered by various judicial precedents including Gajraj Singh, Arun Kumar, Anil Kumar Wagh, Puneet Kumar, Renuka Tyagi, Mahavir Prasad etc.
The applicant has, inter alia, relied upon the judgments in State of Orissa Vs. Dr. (Miss) Bina Pani Dei, Nirmal Singh Vs. FCI & Others and Bank of India & Anr. Vs. Degala Suryanarayana, besides the relevant DoP&T instructions, in support of his claim that the impugned action is contrary to the applicable principles governing promotion and natural justice.
CONTENTIONS OF THE RESPONDENTS
Mr. R. K. Jain, learned counsel, by referring to the contents of the reply filed on 27.08.2025 on behalf of respondents, submitted that the present O.A. is devoid of merit and is liable to be dismissed, as the action of the respondents has been taken strictly in accordance with the applicable DoP&T instructions governing vigilance clearance and the sealed cover procedure.
It is submitted that the applicant joined the CPWD as Assistant Executive Engineer (E&M) on 03.08.2001 and was regularly promoted as Executive Engineer (E&M) w.e.f. 05.06.2006. The regular DPC for promotion from the grade of Executive Engineer (E&M) to Superintending Engineer (E&M) for the vacancy years 2013-14 to 2016-17 was held by the UPSC on 05.08.2016. At that point of time, the applicant's name did not figure in the seniority list then prevailing and, consequently, he was not within the zone of consideration before the said DPC. Learned counsel further submits that the seniority position subsequently underwent a change. The final seniority list of Executive Engineers (E&M) as on 01.12.2011 was superseded by the revised inter-se-seniority list as on 01.01.2018, issued vide OM dated 17.01.2020. Since the positions of several officers, including the applicant, underwent consequential changes, a Review DPC was convened by the UPSC on 19.04.2023 for the panel years 2007-08 to 2016-17. In the said Review DPC, the applicant was assessed as 'FIT' for the vacancy year 2015-16. It is contended that the assessment of the applicant as 'FIT' by the Review DPC, by itself, did not confer an immediate right to promotion. After the Review DPC, the respondents obtained the applicant's latest vigilance status before implementing the recommendations and issuing the promotion order. The post-DPC vigilance certificate dated 10.05.2023 disclosed that a vigilance case bearing Case Code 2768 was pending against the applicant, in which a charge-sheet for major penalty had been issued on 09.03.2021; a minor penalty of 'Censure' had also been imposed upon the applicant in another case during the preceding ten years; and a further complaint bearing Case Code 4010 was pending and under process.
Learned counsel submits that, in view of the aforesaid vigilance position, the applicant's case necessarily came within the ambit of the 'Deemed Sealed Cover' under Para 7 of DoP&T's OM dated 02.11.2012. The respondents, therefore, could not lawfully release the Review DPC recommendation in favour of the applicant or grant him regular promotion while the prescribed conditions for withholding vigilance clearance continued to exist. It is further submitted that although the applicant's name was inadvertently included in the promotion order dated 30.05.2023, the said order was immediately kept in abeyance on 31.05.2023 and a revised promotion order was issued on 16.06.2023 (Annexure A-3), wherein the applicant's name was omitted in view of the deemed sealed cover applicable to his case. Thus, according to the respondents, the inadvertent inclusion of the applicant's name could not create any vested or enforceable right in his favour. Learned counsel also submits that the applicant had earlier been promoted as Superintending Engineer (E&M) purely on ad hoc basis vide order dated 09.12.2020. Since he was not granted regular promotion and the period of his ad hoc promotion had expired, he was reverted to his substantive post of Executive Engineer (E&M) vide order dated 04.07.2023 (Annexure A-2). The said reversion was, therefore, a consequence of the expiry of his ad hoc tenure and non-grant of regular promotion and cannot be treated as punitive in nature. On the contention of the applicant that he ought to have been promoted in view of the promotion of his batchmates, learned counsel submits that the reliance placed by the applicant on the cases of Shri Pramod Kumar Tomar and Shri Rajmani Prasad Singh is misplaced. Their cases were governed by Para 3 of DoP&T's OM dated 23.01.2014 read with OM dated 21.11.2002. The said provision applies in a Review DPC where a junior had already been promoted on the recommendations of the original DPC, subject to the officer being clear from the vigilance angle on the date of promotion of such junior. In the applicant's case, no junior to him had been promoted in the original DPC. Hence, the said provision has no application to his case.
Learned counsel further submits that the DoP&T OM dated 02.11.2012 specifically provides that vigilance clearance may be denied where the Government servant is under suspension, where a charge-sheet has been issued and disciplinary proceedings are pending, or where prosecution for a criminal charge is pending. The said OM also clarifies that, after recommendation by the DPC, if any of the prescribed situations arises before actual promotion, the case is to be treated as being under deemed sealed cover. It is submitted that Para 9 of the said OM specifically deals with vigilance clearance in cases of Review DPCs. While the Review DPC is required to take into consideration the circumstances existing at the time of the original DPC, before the officer is actually promoted it must nevertheless be ensured that he is clear from the vigilance angle and that the conditions attracting Para 7 of the OM dated 14.09.1992 are not present.
Learned counsel places reliance upon the principles flowing from the judgment of the Hon'ble Supreme Court in Union of India Vs. K. V. Jankiraman, as incorporated in the DoP&T instructions, and submits that an employee has a right to be considered for promotion, but does not possess an absolute right to promotion. The sealed cover procedure operates where the prescribed conditions exist, particularly after issuance of a charge-sheet or in the other circumstances recognized under the applicable instructions.
It is, thus, argued that the applicant cannot claim promotion merely because the Review DPC assessed him as 'FIT'. The recommendation of the Review DPC has to be read along with the vigilance status existing immediately prior to actual implementation of the recommendation. Since the vigilance certificate dated 10.05.2023 disclosed a pending major-penalty disciplinary proceeding pursuant to a charge-sheet dated 09.03.2021, the respondents were justified in treating the applicant's case as falling under the deemed sealed cover procedure.
Learned counsel further submits that the applicant's representation dated 12.04.2024 was duly considered by the Competent Authority after examination of the relevant facts and applicable rules, in consultation with the controlling Ministry, i.e. the Ministry of Housing & Urban Affairs, as well as DoP&T, and was accordingly disposed of vide order dated 05.05.2025 (Annexure A-1). Thus, there is no failure on the part of the respondents to consider the applicant's grievance.
Accordingly, learned counsel submits that the impugned orders have been passed strictly in accordance with the applicable rules and DoP&T instructions; the applicant has failed to establish any legal or enforceable right to regular promotion as Superintending Engineer (E&M); and no arbitrariness, discrimination or illegality can be attributed to the respondents. It is, therefore, prayed that the O.A. on, being devoid of merit, be dismissed with costs.
REBUTTAL TO THE SUBMISSIONS OF THE RESPONDENTS
In response to the counter reply filed by the respondents, the applicant filed a rejoinder on 13.10.2025, reiterating the averments and submissions as made in the O.A. However it is submitted that it is an admitted position, as confirmed in the counter affidavit, that the applicant has been found fit for the vacancy year 2015-16 and further that vigilance clearance was provided for the said year when 'Review' DPC met on 19.04.2023 in UPSC. Post DPC vigilance status dated 10.05.2023 has no significance and wrongly taken into consideration to adopt 'deemed seal cover' in violation of DoP&T OM No. 22011/2/99-Estt. (A) dated 21.11.2002. Para 7 of the other DoP&T OM i.e. OM dated 02.11.2012 is not attracted in the present case. The applicant's case cannot be treated as deemed seal cover in terms of para 7 of DoP&T OM dated 02.11.2012 or 14.09.1992. Furthermore, strictly speaking, as no promotions could be considered for the year 2015-2016 and onwards, it is not a case of review DPC. As a matter of fact, available at that time included only those EEs (Electric) who were promoted in the year 1999. The applicant was eligible to be considered for promotion towards the panel year 2015-16 in the regular DPC held on 05.08.2016, but was not considered due to non-availability of the updated Seniority List. The Seniority List existing at the time of Regular DPC was quite old (issued way back as on 01.12.2011), the applicant was later considered for promotion in the 'Review' DPC conducted on 19.04.2023 (after a delay of 7 years of due date), subsequent to issue of seniority list on 17.01.2020. The seniority list earlier issued was revised in Jan 2020 after abnormal delay of 8 years wherein EEs appointed/promoted after 1999 were assigned seniority for the first time. This abnormal delay is solely on the part of department due to which applicant has already suffered a lot financially as well denial of legitimate promotion which was due in the year 2016. The 'Review' DPC was conducted on 19.04.2023, though the revised Seniority List was issued on 17.01.2020. As such there is again an abnormal delay of 3 years in conduct of 'Review' DPC after issue of revised Seniority List. Respondents have wrongly treated applicant's case as deemed sealed cover in terms of para 7 and para 9 of OM dated 02.11.2012. It is submitted that para 7 of DoP&T OM dated 02.11.2012 is applicable only for Regular DPC and not for Review DPC since the Para 9 of DoP&T's OM dated 02.11.2012 deals specifically with vigilance clearance and promotion in case of 'Review' DPC. Further, the said para 9 has been amended vide DoP&T OM No. 22034/4/2012-Estt.(D-II) dated 23.01.2014. As such the decision taken by MoHUA/CPWD in terms of para 7 of DoP&T's OM dated 02.11.2012 regarding deemed sealed cover is wrong.
Learned counsel further submitted that Sh D. S. Nayak (S. No. 297 in Seniority List of EE (Civil), 1994 batch) was treated as junior to Sh. Pramod Kumar Tomar (S. No. 405 in Seniority List of EE (Civil), 1999 batch) and Sh. Rajmani Pal Singh (S. No.415 in Seniority List of EE (Civil), 1999 batch) since Sh. Nayak was promoted to the grade of SE for the panel year 2016-17 on 11.08.2017. It is very clear that Sh. Nayak is senior to Sh. Tomar and Sh. Singh in the grade of EE (Civil) as per seniority list of EE (Civil) dated 17.01.2020. However, promotion to the grade of SE (Civil) of Sh. Nayak was delayed due to some departmental proceedings. Furthermore, Sh. Dhirendra Chaudhary (Seniority No. 88), Sai Krishna Ponugoti (Seniority No. 89), Devender Kumar (Seniority No. 90), Shiv Kumar Mishra (Seniority No. 91), Vivek Gupta (Seniority No. 92) and Rahul Sitaram Kamble (Seniority No. 94) are those juniors who have been promoted for the year 2016-17 vide order dated 16.06.2023 (Annexure A-3) (i.e. the order from which applicant has been excluded) and therefore, the applicant cannot be denied his promotion towards the year 2015- 16. It is reiterated that as none of the three circumstances as mentioned in OM dated 14.09.1992 has arisen after the recommendations of 'Review' DPC but before actual promotion. Para 7 of DoP&T OM is not attracted. It is relevant to point out that even though the chargesheet proceedings are required to be culminated within 18 months, it is over 4½ years now, respondents are delaying which is causing grave prejudice to the applicant.
RESPONDENTS' REBUTTAL TO THE REJOINDER
The respondent, in response to the stand taken by the applicant in his rejoinder, has filed a sur-rejoinder on 11.12.2025, which has been taken on record and considered along with the pleadings and material available on record. It is submitted that the applicant was not in the zone of consideration in the original DPC held on 05.08.2016 for promotion to the grade of SE (E&M) against panel years 2013-14 to 2016-17. It is further submitted that the DPC was held on the basis of Seniority list of EE (E&M) issued as on 01.12.2011, wherein the applicant's name was not mentioned. Hence, the statement made by the applicant is baseless and fallacious. As regards delay in issuance of seniority list of EE (E&M) as stated by the applicant, it is submitted that in order to regularize the ad hoc promotion in the grade of Executive Engineer, the Ministry of Housing and Urban Affairs in consultation with the DoPT and UPSC vide OM dated 06.07.1999 had decided to divert the 430 and 120 vacancies from Assistant Executive Engineer (AEE) quota to Assistant Engineers (AE) in Civil and Electrical stream respectively over a period of 3 years viz., 1994-95, 1995-96 and 1996-97 (upto 28.10.1996). The afore-mentioned diversion order was challenged in various courts. There were directions passed by the Hon'ble Delhi High Court vide order dated 22.07.2014 in the above W.P. (C) No. 840/2003 and 858/2003 to review the number of vacancies diverted from Assistant Executive Engineer quota (AEE quota) to Assistant Engineer quota (AE quota) issued vide OM dated 06.07.1999. Due to revised diversion order and the Hon'ble Delhi High Court's directions in W.P. No. 840/2003 vide judgment dated 22.07.2014, the review DPC for promotion of AE (C) to the grade of EE (C) for the vacancy year 1994-95 to 1996-97 (upto 28.10.1996) and 1996-1997 (from 28.10.1996) to 2002-2003 were held in the UPSC and promotion order issued on 08.06.2017 and 01.01.2018 respectively. Due to this, in the meanwhile, the inter-se seniority list in the grade of EE (Civil) was not issued after 28.09.2012. After issuance of promotion order of review DPC, the department in consultation with Department of Personnel and Training (DoP&T) and Department of Legal Affairs (DoLA), issued the final inter-se-seniority in the grade of Executive Engineer (Civil) was issued vide Office Memorandum No. 37/1/2018-EC.I(B) dated 17.01.2020 (annexed as Annexure- R/1) with the approval of MoHUA. It is also submitted that Para 3 of DoP&T's OM dated 23.01.2014 (annexed herewith as Annexure- R/2) states that "in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoP&T OM dated 14.09.1992 get attracted on the date the actual promotion is considered, as provided in the DoP&T O.M. No. 22011/2/99-Estt. (A) dated 21.11.2002." Further, Para 4 of the said OM states that "in cases, where the junior is not promoted, it is to be ensured that the provisions of Para 7 of OM dated 14.09.1992 (annexed as Annexure-R/3) are not attracted on the date the official is being actually promoted." Moreover, no junior of the applicant was promoted on the recommendation of original DPC held on 05.08.2016 against panel years 2013-14 to 2016-17. Also, Para 7 of DoP&T's OM dated 14.09.1992 states that "a government servant, who is recommended for promotion by the DPC but in whose case any of the circumstances mentioned in Para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.
The applicant was assessed for the first time in the review DPC held on 19.04.2023 against panel year 2015-16 wherein he was assessed as 'FIT'. As per Post-DPC-Vigilance Clearance Certificate dated 10.05.2023 (annexed as Annexure-R/4), the applicant was charge-sheeted for major penalty on 09.03.2021. His case has been kept in Deemed Sealed Cover in terms of para-7 of DoP&T OM dated 02.11.2012 (annexed as Annexure-R/5) which states that the O.M. dated 14.09.1992 confined the circumstances for adopting sealed cover to the three situations mentioned in para 2 of the said O.M. Even after recommendation of the DPC, but before appointment of the officer if any of the three situations arise, the case is deemed to have been kept in sealed cover by virtue of para 7 of the O.M. dated 14.09.92.
As regards promotions of Sh. Pramod Kumar Tomar and Sh. Rajmani Prasad Singh (annexed as Annexure-R/6), it is submitted that as per available records, the MoHUA issued promotion order in respect of all those officers who were clear from vigilance angle and the names of few officers were left from the aforesaid promotion order who were assessed as 'FIT' by the review DPC but they were not clear from vigilance angle as on date of promotion order issued. Para 3 of DOPT OM dated 23.01.2014 reads as under:-
"3.In the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DOPT OM dated 14.09.92 get attracted on the date the actual promotion is considered as provided in DoP&T O.M. No. 22011/2/99-Estt (A) dated 21.11.2002.”
Therefore, the officers who were not promoted in the aforesaid promotion order even after getting assessed as ‘FIT’ by the review DPC needs to be considered for the promotion. The details of such officers are mentioned as under:-
Pramod Kumar Tomar & Rajmani Pal Singh
(His junior Sh. D.S. Naik was promoted vide office order dated 11.08.2017. He was clear from vigilance angle on date of promotion of his junior.)
As regards the promotion of Dhirendra Chaudhary (seniority no. 88), Sai Krishna Ponugoti (seniority no. 89), Devender Kumar (seniority no. 90), Shiv Kumar Mishra (seniority no. 91), Vivek Gupta (seniority no. 92) and Rahul Sitaram Kamble (seniority no. 94), it is submitted that the aforesaid officers were assessed as ‘FIT’ against panel year 2016-17 by the review DPC held on 19.04.2023. Subsequently, they were promoted vide MoHUA’s office order dated 16.06.2023 (Annexure A-3). The applicant (seniority no. 87) was assessed as ‘FIT’ by the said review DPC against panel year 2015-16. However, his case was kept in deemed sealed cover in terms of para-7 of DoP&T’s OM dated 02.11.2012.
It is submitted that as per vigilance clearance certificate dated 10.05.2023, the applicant was charge-sheeted for major penalty on 09.03.2021. The Review DPC was held on 19.04.2023 wherein the applicant was assessed as ‘FIT’ against panel year 2015-16. However, the officer was not clear from vigilance angle before his actual promotion. Hence, his case has been kept under deemed sealed cover. It is further submitted that the applicant's representation dated 12.04.2024 was duly considered and disposed of in consultation with the nodal Ministry and DoP&T. It is mentioned that regular DPC held on 05.08.2016 for panel years 2013-14 to 2016-17, the zone of consideration for promotion was prepared on the basis of the final seniority list in the grade of EE (E&M) as on 01.12.2011 which was prevailing at the time of the regular DPC. It is also submitted that the judgments referred by the applicant are not applicable in the present factual matrix of the present case.
It is submitted that Inquiry Officer (IO) submitted inquiry report dated 30.10.2023. Disagreement memorandum No. 1/7/D-III/2021/VS-II/AV-IV dated 29.10.2025 (received form MoHUA) along with I.O. report was sent to the applicant vide letter dated 30.10.2025 to submit his representation. It is contended that the applicant is not entitled for the reliefs made in the O.A. in view of the submissions made herein above.
ANALYSIS
We have heard learned counsel for the parties and carefully perused the pleadings and material placed on record. The controversy lies within a narrow compass. The applicant seeks regular promotion to the post of Superintending Engineer (E&M) against the panel year 2015-16. It is not in dispute that the Review DPC held on 19.04.2023 considered the applicant for the said panel year and assessed him as 'FIT'. It is also not in dispute that the charge-sheet in the disciplinary proceedings relied upon by the respondents had already been issued on 09.03.2021. The applicant was thus not confronted with any fresh disciplinary proceeding instituted between the date of the Review DPC and the date on which its recommendation was sought to be implemented.
At the outset, it is necessary to keep in view the distinction between the applicant's entitlement for consideration for promotion and his claim to actual promotion. It is settled that an employee has a right to be considered for promotion in accordance with the applicable rules, though there is no absolute right to promotion merely by virtue of eligibility. The sealed-cover procedure is an exception intended to ensure that the question of promotion of an employee facing specified disciplinary/criminal proceedings is kept in abeyance in accordance with the prescribed conditions. The Hon'ble Supreme Court in Union of India Vs. K. V. Jankiraman recognized the limited circumstances in which the sealed-cover procedure may be invoked.
Para 2 of the DoP&T OM dated 14.09.1992 identifies the circumstances in which the sealed-cover procedure is to be adopted, namely, broadly, where the Government servant is under suspension, where a charge-sheet has been issued and disciplinary proceedings are pending, or where prosecution for a criminal charge is pending. Para 7 of the DoP&T OM dated 14.09.1992, however, deals with a distinctly different situation. It provides that where a Government servant has already been recommended for promotion by the DPC, but any of the circumstances contemplated in Para 2 arise after the recommendations of the DPC are received but before he is actually promoted, the case would be treated as one under deemed sealed cover.
The emphasis in Para 7 is, therefore, upon the circumstance arising after the recommendations of the DPC and before actual promotion. In the present case, the respondents seek to invoke this provision on the basis of the charge-sheet dated 09.03.2021. However, the Review DPC was held much thereafter, on 19.04.2023. Thus, the charge-sheet was not a circumstance which arose after the recommendation of the Review DPC. It was an existing circumstance on the date on which the Review DPC actually considered the applicant's case and nevertheless assessed him as 'FIT'.
The respondents have sought to overcome this difficulty by relying upon Para 9 of the DoP&T OM dated 02.11.2012 and the clarification dated 23.01.2014. We are unable to accept the respondents' interpretation in the facts of the present case.
Para 9 of the OM dated 02.11.2012 specifically deals with vigilance clearance in cases of Review DPC and provides that the Review DPC is to take into consideration the circumstances obtaining at the time of the original DPC and that any subsequent situation arising thereafter would not stand in the way of vigilance clearance for the Review DPC. It further provides that before actual promotion it has to be ensured that the officer is clear from the vigilance angle and that para 7 of the OM dated 14.09.1992 is not attracted. Paras 7 and 8 of the OM dated 14.09.1992 reads as under:-
“7.A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.
8.In so far as the personnel serving in the Indian Audit and Accounts Department are concerned, these instructions have been issued after consultation with the Comptroller and Auditor General of India.”
The clarification dated 23.01.2014 makes the position still more explicit. In cases where a junior has been promoted on the recommendations of the original DPC, an officer considered by a Review DPC is to be considered for promotion if he was clear from the vigilance angle on the date of promotion of the junior, even if the circumstances mentioned in Para 2 of the OM dated 14.09.1992 subsequently arose. More importantly for the present controversy, Para 4 of the said clarification provides that where the junior has not been promoted, it has to be ensured that Para 7 of the OM dated 14.09.1992 is not attracted on the date on which the officer is actually promoted.
In the present case, the respondents themselves have specifically stated in their sur-rejoinder that no junior of the applicant was promoted on the recommendations of the original DPC held on 05.08.2016. This factual position assumes considerable significance. Once there was no promotion of a junior pursuant to the original DPC, the special protection contemplated by Para 3 of the OM dated 23.01.2014 concerning the date of promotion of the junior may not be invoked in favour of the applicant. But, at the same time, Para 4 becomes directly relevant. The respondents were required to demonstrate that the circumstances contemplated by Para 7 of the OM dated 14.09.1992 were attracted on the date of actual promotion.
The respondents have failed to establish such a circumstance. The charge-sheet dated 09.03.2021 was not issued between 19.04.2023, when the Review DPC recommended the applicant as 'FIT', and on 30.05.2023, when the promotion order was issued. The disciplinary proceeding was already pending when the Review DPC met. Therefore, it cannot be characterised as a circumstance which arose after the recommendations of the DPC within the meaning of Para 7. This distinction is material and cannot be diluted merely by referring to the general proposition that vigilance clearance must exist before actual promotion. If Para 7 were interpreted in the manner suggested by the respondents, every pre-existing circumstance which was already known to the Review DPC could subsequently be used to convert a positive Review DPC recommendation into a deemed sealed-cover case, notwithstanding the specific safeguards prescribed for Review DPCs. Such an interpretation would render the distinction between an existing circumstance and a circumstance arising after the DPC recommendation otiose.
The respondents' own pleadings further disclose that the applicant's case was considered by the Review DPC on 19.04.2023 and it was assessed as 'FIT'. The respondents have not stated that the Review DPC was prevented from considering the applicant on account of the pending disciplinary proceedings or that his assessment was itself kept in sealed cover. Rather, the applicant was assessed as 'FIT' and the difficulty was raised only at the stage of implementation on the basis of the post-DPC vigilance certificate dated 10.05.2023. The subsequent vigilance certificate cannot, by itself, constitute a fresh event attracting Para 7 when the very charge-sheet referred to therein was issued more than two years before the Review DPC.
We are also unable to accept the contention that the mere issuance of a charge-sheet, irrespective of when it was issued and irrespective of the nature of the DPC being undertaken, automatically and indefinitely disentitles an employee from promotion. The sealed-cover procedure is not an independent source of power; it must be applied strictly in accordance with the conditions prescribed by the governing instructions. The Hon'ble Supreme Court has repeatedly emphasised that the procedure is intended to operate within the framework of the prescribed conditions.
The decision of the respondents is rendered still more difficult to sustain in view of the peculiar history of the present case. The original DPC for the relevant panel years was held on 05.08.2016 on the basis of the then prevailing seniority position. The applicant was subsequently brought within the zone of consideration consequent upon revision of the seniority position, resulting in the Review DPC being convened only on 19.04.2023. Thus, the applicant's consideration for the panel year 2015-16 was itself delayed for reasons attributable to the revision and finalisation of seniority. It is not the case of the respondents that the applicant himself was responsible for the delay.
The applicant's contention regarding the abnormal delay cannot, however, by itself confer an automatic right to promotion, nor can the fact that he was granted ad hoc promotion in 2020 be treated as creating a vested right to regular promotion. Nevertheless, these circumstances are relevant while examining whether the respondents have correctly applied the sealed-cover procedure after the applicant was eventually considered by the Review DPC.
The reliance placed by the respondents on the cases of other officers does not advance their case. The applicant has pointed out that several officers junior to him were ultimately promoted pursuant to the Review DPC held on 19.04.2023, whereas his case alone was withheld on account of the disciplinary proceedings. The respondents have explained that those officers were clear from the vigilance angle and that their cases were therefore implemented. Such distinction may ordinarily be legitimate. However, the question before us is whether the respondents possessed authority under Para 7 of the DoP&T OM dated 14.09.1992 to place the applicant's case under deemed sealed cover. For the reasons already recorded, we find that the condition precedent for invoking Para 7 ibid has not been established.
We also find substance in the applicant's contention that the impugned action had adverse civil consequences and was taken without affording him an opportunity to represent against the proposed withdrawal of promotion. Though, the applicant had initially been included in the promotion order dated 30.05.2023, the said order was kept in abeyance on 31.05.2023 and thereafter his name was deleted by the revised order dated 16.06.2023 (Annexure A-3). His reversion was thereafter ordered on 04.07.2023 (Annexure A-2).
It is true that the respondents may correct a patent or inadvertent administrative error. However, where the proposed action rests upon a disputed interpretation of the applicable promotion/vigilance instructions and has the effect of withdrawing a benefit already extended to an employee and reverting him from a higher post, the requirement of fairness assumes significance. The principle laid down by the Hon'ble Supreme Court in K. I. Shephard & Ors. Vs. Union of India & Ors. is that administrative action having adverse civil consequences ordinarily has to conform to the requirements of natural justice unless its exclusion is justified by the circumstances of the case.
Hon'ble High Court of New Delhi in W.P. (C) No. 629/2014 decided on 14.10.2014 titled Union Public Service Commission Vs. Smt. Renuka Tyagi, has held as under:-
"12.Having heard learned counsels for the parties and considered the materials placed on record, we are of the view that the present petition is meritless and there is no error or infirmity in the impugned order. We are concerned with the claim of the respondent to be considered for promotion in the vacancy year 2003-04. During that period, or immediately after the expiry of the said year 2003-04, the respondent was not under any cloud and no charge sheet/ inquiry was pending pertaining to the conduct of the respondent for the year 2003-04 or earlier. The consideration of the respondent by the DPC for the year 2003-04 had to take place by transporting itself back into time - as if in a time machine, if the DPC was being held soon after the expiry of the vacancy year 2003-04, by taking into consideration the fact situation as then prevalent. Had the DPC actually met to consider the cases for promotion for the vacancy year 2003-04 soon after the expiry of the said year, it would not be in a position to know as to what the future hold for the respondent in terms of her conduct and discipline. Thus, the respondent could not have been subjected to any disadvantage on the basis of conduct which had not taken place till then, and would take place in the future - of which there was no means of having knowledge.
13.A Division Bench of this Court in Union of India & Others v. Mahavir Prasad, W.P.(C.) Nos. 4682-83/2013 decided on 29.07.2013, dealt with a similar situation. In that case Mahavir Prasad - though empanelled at serial No.1 of the select list for the year 2002-03 by the DPC held, inter alia, for the vacancy year 2002-03, could not get the fruits of the said empanelment because of the fact that on 09.09.2008, a memorandum was served upon him along with the charge sheet for major penalty proceedings under Rule 14 of the CCS(CCA) Rules, 1965 resulting in penalty order on 07.02.2011 - stopping one increment for two years without cumulative effect. The stand of Union of India was that when the DPC met on 05.05.2011 after the seniority list was revised in August 2008, Mahavir Prasad had been issued a charge sheet, and thus, the promotion has to be kept pending till the disciplinary proceedings reach conclusion - which it did on 07.02.2011, with the imposition of penalty.
14.On the other hand, the stand of Mahavir Prasad was that the vacancy to which he had been promoted pertained to the year 2002-03, and the DPC which had met in 2009 had recommended him for empanelment for vacancy year 2002-03. Mahavir Prasad contended that the factual situation which had to be considered was by transposing oneself back to the year 2002-03. The Division Bench while upholding the view taken by the Tribunal on the aforesaid aspect, observed as follows:
"7.Three dates are important to be re-emphasized. The first is that the charge-sheet was issued on September 09, 2008 and the DPC met on May 05, 2011 and lastly that the penalty was inflicted on February 07, 2011. Notwithstanding the charge-sheet issued when DPC met, Mahavir Prasad's name was not only considered by the DPC but was not put in a sealed cover. The reason is obvious, and the logical culmination of the said reason, would determine the fate of the 2 appeals. The reason is that the DPC which met in the year 2011 had to transpose itself back to the year 2002-03 for the reason the select panel which it was drawing up pertained to said year. Now, if you have to transpose yourself back into the past and perform an act as of the past, the facts and circumstances existing as of the past alone would determine the further course of action; untainted and uninfluenced by the current events. This flows out from the law declared by the Supreme Court in the decision reported as (2000) 7 SCC 2010 Delhi Jal Board vs. Mahinder Singh. Considering the law declared by the Supreme Court in the decisions reported as (1999) 5 SCC 762 Bank of India vs. Degala Suryanarayana and (1998) 4 SCC 154 State of A. P vs. N. Radhakishan, the Supreme Court considered a case where the recommendations of the DPC pertaining to Mahender Singh were kept in a sealed cover because Mahender Singh had been charge-sheeted. He was ultimate exonerated of the charges alleged against him, but unfortunately for him when said event took place he found himself under a cloud of a second charge-sheet being issued against him. With reference to the fact that the second charge-sheet was issued the department did not give effect to the recommendations of the DPC which were kept in the sealed cover in view of the pendency of the disciplinary enquiry relating to the first charge-sheet when the DPC met. Mahender Singh won the battle when a Single Judge of this Court allowed the writ petition filed by him. He won the second battle when intra court appeal filed by Delhi Jal Board was dismissed. He won the third battle before the Supreme Court which held that once the first disciplinary enquiry resulted in a decision in favour of Mahender Singh the benefit of the finding of the DPC lying in the sealed cover could not be denied to him on account of pendency of the second enquiry which commenced after the DPC had met. The ratio of law which we cull out is this that legal rights and liabilities have to be considered with reference to the facts in existence as of the date on which the right or the liability has to be considered.
8.Thus, we hold that the view taken by the Tribunal is correct. The penalty imposed upon Mahavir Prasad on February 07, 2011 pertained to the charge-sheet issued on September 09, 2008 and it cannot be transposed back to the year 2002-2003. We would be failing not to note that the recommendations of the DPC which met on May 05, 2011 have been given retrospective effect for all others; even those who had died in the interregnum. The writ petitions are accordingly dismissed but without any order as to costs." (emphasis supplied)
The Order/Judgment of this Tribunal in O.A. No. 3029/2011 titled Shri Mahavir Prasad Vs. Union of India & Ors., was challenged before the Hon'ble High Court of New Delhi by way of W. P. (C) No. 4682/2013 & Anr. decided on 29.07.2013 titled Union of India & Ors. Vs. Mahavir Prasad and the Hon'ble High Court has dismissed the said W.P. and has held as under:-
"5.Reverting back to the issue debated between the parties, on the strength of the reasoning that as per law declared by the Supreme Court in the decision reported as (1991) 4 SCC 109 U.O.I vs. K. V. Jankiraman the name of a person eligible to be considered for promotion could not be kept in a sealed cover and as a result promotion denied if on the date when the DPC met a charge-sheet was not issued, the Tribunal has held that since the instant DPC pertained to empanelment for the year 2002-2003 in which year admittedly no charge-sheet was issued, the promotion had to follow and as a consequence the reversion had to be quashed."
The aforesaid Order/Judgment was further challenged before the Hon'ble Apex Court by way of S.L.P. decided on 10.02.2014 and the same was dismissed. The aforesaid Order/Judgment of the Tribunal passed in O.A. No. 3029/2011 has thus attained finality.
This Tribunal in the matter of Gajraj Singh Vs. Union of India & Ors., reported in 2003 (1) SLJ 123 (CAT), decided on 26.04.2002, in Paras 10 and 12, has laid down as under:-
"10.Respondents further submit that irrespective of the findings in the DPC about the applicant, it has been decided not to give effect to it, in terms of Ministry of Home Affairs order No. 14016/7/93-UTS.II dated 15.2.2001 in terms of DOPT's instructions dated 14.9.92 (supra) and "that his case for promotion shall be considered by the DPC in the normal course as per rules, when it meets next for considering eligible Officers for promotion against the vacancies, if any, pertaining to the years 1999 onwards". Evidently the respondents are relying upon para 2 of the DOPT's OM dated 14.9.92 which reads as below:-
"A Government servant, who is recommended for promotion by the Deptt. Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also". We find that para 7 of the OM (supra) does not come to the assistance of the respondents. DPCs generally meet and consider cases of promotion of the individuals in the eligibility zone and make recommendations for future vacancies and this process is, therefore, directed to be undertaken on year to year basis before the vacancies arise. In such situations, if any, of the circumstances of para 2 of the DOPT's OM arise after the DPC's recommendations are recorded, but promotions have not taken place, directions of para 7 would operate against the promotions, as if the individual's case is placed in a sealed cover. However, the same would not apply in a case, where the individual's case is considered for promotion for an earlier period, much before any of the proceedings were contemplated and he or she is so recommended for promotion during such earlier period. In the instant case, the applicant's case was considered for promotion during the period 1993-98 and DPC had recorded its recommendation either way and the effect thereon would have followed immediately thereafter i.e. from 1993-98. No proceeding whatsoever was even contemplated against the applicant till 1.3.2000 and therefore the chargesheet issued on 1.3.2000 or the penalty imposed on 20.7.2000, could not have acted retrospectively on the applicant's promotion for any of the years 1993-98. Averments to the contrary are fallacious and unacceptable. *** *** ***
12.In the above view of the matter, the OA succeeds to a substantial extent and is accordingly disposed of. Respondents are directed to open the sealed cover in which the findings on the applicant, relating to his regular promotion as ACP, against the vacancies of 1993-98, are placed and to give effect to the same. If he is declared fit by the DPC, he would be entitled for regular promotion from the earliest year between 1993 & 98 in respect of which, such positive findings have been recorded, with all consequential benefits. This shall be done by the respondents within two months from the date of receipt of a copy of this order. Other reliefs prayed for are dismissed as having no merits. No costs."
Chandigarh Bench of this Tribunal in O.A. No. 358/HR/2008 decided on 27.08.2010 titled Arun Kumar Vs. Union of India & res., has held as under:-
“15.After noticing the instructions dated 14.9.92 that DPC is to hold meetings on a year to year basis before the vacancies arise, the Bench observed in that case that no proceedings, whatsoever, were even contemplated against the applicant till 1.3.2000 and therefore the charge sheet issued on 1.3.2000 or the penalty imposed on 20.7.2000, could not have been acted upon retrospectively regarding the applicant’s promotion for any of the years from 1993-94 to 1997-98. Taking note of the instructions dated 14.9.1992, it was further recorded that the same does not come to the assistance of the respondents. The DPCs generally meet and consider cases of promotion of the individuals in the eligibility zone and make recommendations for future vacancies and this process is, therefore, directed to be undertaken on a year to year basis before the vacancies arise. In such a situation, if any of the circumstances of para 2 of the DOPT’s OM arise after the DPCs recommendations are recorded, but promotions have not taken place, directions of para 7 would operate against the promotions, as if the individual’s case is placed in a sealed cover. However, the same would not apply in case, where the individual’s case is considered for promotion for an earlier period, much before any of the proceedings were contemplated and he or she is recommended for promotion during such earlier period.
16.We find that the case in hand is fully covered by the decision in the case of Gajraj Singh (supra). We do not find any grounds made out to take a different view. It is not in dispute even in this case that the respondents have clubbed the vacancies for the year 1998-1999 to 2001-2002. The cases of persons who fell within the zone of consideration against the vacancies for the years 1999-2000 and 2000-2001 onwards have to be considered with regard to the record available on that relevant date or year and not with reference to an event which has taken place later in 2001 i.e. issuance of chargesheet to the applicant. It is not disputed that the applicant was eligible qua the vacancy for the year 1998-99. He was promoted in 1997 itself, though on ad-hoc basis. Thus, the initiation of departmental proceedings in 2001 would not have any adverse impact on his claim for promotion against the vacancies for the years 1998-99 or 1999-2000.”
Bangalore Bench of this Tribunal in O.A. No. 170/00713/2017 decided on 11.03.2019 titled Anil Kumar Wagh Vs. Union of India, has held as under:-
“4.The applicant has filed written submission on the reply of the respondents stating that when the respondent took the process ending with withholding of one increment without cumulative effect for a period of about 10 years after the initial reference to the CBI of the allegations in 1998, they can hardly take shelter under limitation, when the applicant seeks justice in regard to promotion when due to him. He has given chronology of the inquiry proceedings at Annexure-A1 indicating that total time taken is more than 14 years during which period, no delay whatsoever was attributable to the applicant. He submits that res-judicata is limited to the penalty order dtd. 25.6.2008 of withholding of one increment without cumulative effect, the questions of promotion of JAG and SAG subsequently remain. Hence, the respondent’s contention that the present case is of res-judicata is not sustainable. He cited the cases of Shri Arun Kumar vs. UOI (Annexure-A2) decided by CAT, Chandigarh Bench in OA. No. 358/HR/2008 and Shri Gajraj Singh vs. UOI & Ors., 2003 (1) SLJ 123 (CAT) held by CAT, Principal Bench in support of his contention.
5.We have heard the Learned Counsel for both the parties and perused the materials placed on record. The applicant had originally asked for three reliefs viz. (1) to hold that the order dtd. 25.6.2008 passed by the respondent bearing No. 8/49/2000/Vig.II, as Annexure-A1 is arbitrary and without sanction of law as there was no finding given in the order to the alleged allegations and to quash the same (2) to hold that the respondent's denial to the applicant regular promotion to Junior Administrative Grade(JAG) in the year 1998 and subsequent promotion to Senior Administrative Grade(SAG) along with batchmate of 1986 batch is arbitrary, illegal and without sanction of law (3) to grant regular promotion of JAG and subsequent promotion to SAG along with batch mates of 1986/87 recruitment, instead of 1995 batchmate, without loss of seniority and to extend all the consequential benefits. However, in view of the earlier applications filed by him vide OA. No. 349/2010 decided on 20.1.2012 and RA. No.1/2018 ordered on 17.1.2018 and WP. No. 12157/2018 (S-CAT) which was filed before the Hon'ble High Court of Karnataka and dismissed on 21.6.2018, the applicant in his written submission has requested for not pressing the relief No.1 relating to the penalty imposed on him. He has made out a case for the other two reliefs relating to regular promotion to the JAG along with his juniors and to restore the rightful promotion due to him. The respondents have also admitted that a DPC for regular promotion to JAG of ITS Group-A against the vacancy years 1998-99, 1999-2000, 2000-01 and 2001-02 was convened in November-December 2002. The applicant was eligible to be considered against 1998-99. However, he could not be assessed against 1998-99 as sufficient number of officers with prescribed bench marks were already available. The respondents also state that the applicant was considered and recommended for promotion to JAG for the year 1999-2000. They also state that the recommendation in respect of the applicant was placed in the sealed cover as a prosecution case became pending against him. The same position continued till the issue of punishment orders in 2008. The crucial point to be noted is that when the DPC met on 26.12.2002, it was considering the vacancies for the previous years from 1998-99 onwards. Therefore, when the applicant was found suitable for the year 1999-2000 based on his eligibility and the availability of the officers suitable for promotion etc. there were no charges pending against him with respect to that particular year, even though on the date of the meeting of the DPC i.e. 26.12.2002 a charge sheet had already been issued. The contention of the respondent that the recommendation regarding the applicant for the year 1999-2000 was placed in the deemed sealed cover as a prosecution case became pending against him cannot be accepted and only the charge sheet issued to him just before the date of DPC on 26.12.2002 can be taken into consideration. As rightly contended by the applicant, his case is exactly similar to the O.A. No. 358/HR/2008 ordered by the Hon'ble CAT, Chandigarh Bench of this Tribunal vide its order dtd.27.08.2010 wherein the Tribunal in para-16 stated as follows:
16.We find that the case in hand is fully covered by the decision in the case of Gajraj Singh (supra). We do not find any grounds made out to take a different view. It is not in dispute even in this case that the respondents have clubbed the vacancies for the year 1998-1999 to 2001-2002. The cases of persons who fell within the zone of consideration against the vacancies for the years 1999-2000 and 2000-2001 onwards have to be considered with regard to the record available on that relevant date or year and not with reference to an event which has taken place later in 2001 i.e. issuance of chargesheet to the applicant. It is not disputed that the applicant was eligible for the vacancy for the year 1998-99. He was promoted in 1997 itself, though on ad-hoc basis. Thus, the initiation of departmental proceedings in 2001 would not have any adverse impact on his claim for promotion against the vacancies for the years 1998-99 or 1999-2000.
6.This order of the Chandigarh Bench was challenged in the High Court of Punjab and Haryana vide CWP No.11715/2011 which was dismissed on 8.7.2011. The same being challenged in the Hon'ble Supreme Court in Special Leave Petition CC.14799/2012 was also dismissed on 14.09.2012 on the ground of delay as well as on merits. Therefore, it is clear that the applicant having been found eligible to be promoted to JAG for the year 1999-2000 should not be denied the same in view of the charges being issued in the year 2002 and because of the fact that had the DPC been convened before the charge sheet came to be issued, the applicant would certainly have been promoted and there was no case for keeping the recommendation relating to him in sealed cover for the year 1999-2000. We also note that the final orders issued against the applicant resulted in a minor penalty."
Further, this Tribunal in O.A. No. 3154/2019 decided on 07.03.2024 titled Puneet Kumar Vs. Union of India & Anr., has held as under:-
"12.Admittedly, the review DPC was conducted for the year 2016 and the counterparts of the applicant have been promoted w.e.f. 01.04.2016 and both the FIRs are post 01.04.2016. Obviously, there was no criminal/disciplinary proceeding pending against the applicant on the said date i.e. 01.04.2016. The respondents through OM dated 14.09.1992 explains the procedure to be adopted in the matters of promotion against whom the disciplinary/court proceedings are pending or whose conduct is under investigation. The said OM was followed by subsequent OM dated 02.11.2012. The impediments so detailed in both the OMs read as under:-
"2.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."
Learned counsel for the respondents also relies on the OM dated 21.11.2002. The same is reproduced herein below:-
OFFICE MEMORANDUM
Sub. : Instructions on sealed cover procedure - Applicability to review DPC -clarification regarding.
The undersigned is directed to refer to the instructions on sealed cover procedure as contained in this Department's OM No. 22011/4/91- Estt. (A) dated 14.09.1992 and to say that a question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
2.In so far as the persons serving in the Indian Audit and Accounts Department are concerned these instructions are issued after consultation with the Comptroller and Auditor General of India."
According to the respondents, the OM dated 21.11.2002, serves as an impediment for non extension of promotion to the applicant. On a careful reading of the OM, we are convinced that the OM in fact, does not serve as an impediment in promotion to the applicant. The OM clearly explains that the sealed cover procedure contained in the OM dated 14.09.1992 could not be resorted to by the review DPC if no departmental proceedings or criminal prosecution was pending against the Govt. Servant at the time of meeting of the original DPC or before the promotion of his junior on the basis of recommendations of the review DPC. In the instant OA, on the date when the juniors of the applicants were recommended for promotion by the review DPC i.e. 01.04.2016, neither the disciplinary proceedings nor any criminal proceedings were pending that may have served as an impediment in extending promotion to the applicant. We are guided by the judgment of Hon'ble High Court in W.P. (C) No. 4684/2011, relied upon by the applicant and reproduced hereinabove. The facts of the said judgment are relevant to the present matter and come to the rescue of the applicant."
The respondents have relied upon the judgment dated 18.04.2000 of Hon'ble Supreme Court in Civil Appeal Nos. 6995-97 of 1994 titled Union of India & Anr. Vs. R. S. Sharma, reported in (2000) 4 SCC 394, wherein the Hon'ble Supreme Court considered the validity and applicability of the sealed-cover procedure in cases where an employee becomes subject to disciplinary/criminal proceedings after the recommendations of the Departmental Promotion Committee (DPC) but before actual promotion. The Hon'ble Court held that where the conditions stipulated in para 7 of the Office Memorandum dated 14.09.1992 are attracted, the DPC recommendations are required to be kept in sealed cover and the employee cannot claim actual promotion until he is completely exonerated. The Court specifically observed that the relevant consideration is whether the employee was “actually promoted” by the relevant date; any omission on the part of the Department to promote him earlier cannot, by itself, defeat the operation of the sealed-cover procedure. Thus, where formal sanction for prosecution had been accorded before actual promotion, the recommendations of the DPC were rightly required to remain in sealed cover till the conclusion of the disciplinary/criminal proceedings. However, in our view, the said judgment does not advance the case of the respondents.
In the present case, however, it is not necessary to rest our conclusion solely on the ground of violation of natural justice. The impugned action fails on the fundamental ground that the respondents have not demonstrated the applicability of Para 7 of the OM dated 14.09.1992 to the facts of the present case. The applicant’s charge-sheet was a pre-existing circumstance on 19.04.2023 and was not a circumstance which arose after the Review DPC recommendation.
We may also deal with the applicant’s reliance upon the DoP&T OM dated 14.10.2013 regarding completion of disciplinary proceedings. Even assuming that the disciplinary proceedings have remained pending for a considerable period, mere pendency beyond the administrative time-frame prescribed by the DoP&T instructions does not automatically result in exoneration of the employee or confer an indefeasible right to promotion. The respondents are, however, expected to ensure that disciplinary proceedings are concluded expeditiously and without avoidable delay. The applicant's entitlement to promotion in the present case is being determined independently of the merits or outcome of the disciplinary proceedings.
The fact that the Inquiry Officer submitted his report on 30.10.2023 and that a disagreement memorandum was issued only subsequently also demonstrates that the disciplinary proceedings continued substantially beyond the date on which the applicant's promotion was considered. The disciplinary proceedings may continue in accordance with law and nothing contained in this order shall prejudice the respondents in taking them to their logical conclusion. Our finding is confined to the legality of withholding the applicant's promotion for the panel year 2015-16 by invoking the deemed sealed-cover procedure on the basis of a charge-sheet which admittedly pre-dated the Review DPC.
On a cumulative consideration of the facts and the applicable instructions, we are of the considered view that the respondents were not justified in treating the applicant's case as a "Deemed Sealed Cover" under paragraph 7 of the DoP&T OM dated 14.09.1992/02.11.2012, merely on the basis of the charge-sheet dated 09.03.2021, after the Review DPC had considered him on 19.04.2023 and assessed him as 'FIT' for the panel year 2015-16.
Consequently, the impugned order dated 05.05.2025 (Annexure A-1), whereby the applicant's representation was rejected, as well as the orders dated 16.06.2023 (Annexure A-3) and 04.07.2023 (Annexure A-2), insofar as they exclude the applicant from regular promotion for the panel year 2015-16 and treat his case as deemed sealed cover on the aforesaid ground, cannot be sustained and are liable to be set aside.
The next question concerns the consequential relief. Since the Review DPC has already assessed the applicant as 'FIT' for the panel year 2015-16, no useful purpose would be served by directing the respondents to convene another DPC. The applicant is accordingly entitled to implementation of the recommendation of the Review DPC, subject to the verification of the record and compliance with all other statutory/service requirements which are not inconsistent with the findings recorded herein.
Insofar as monetary benefits are concerned, the applicant admittedly worked as Superintending Engineer on ad hoc basis for a period and was thereafter reverted. Further, the regular promotion is being directed on the basis of a Review DPC conducted retrospectively for an earlier panel year. In these circumstances, the question of actual arrears of salary for the entire intervening period requires separate consideration under the applicable rules. We are, therefore, of the view that the applicant should ordinarily be granted notional seniority and pay fixation from the date on which he would have been promoted pursuant to the panel for the year 2015-16, with actual monetary benefits to be worked out in accordance with the applicable rules. The period during which he did not actually discharge the duties of the higher post shall not, merely by virtue of this order, entitle him to automatic payment of arrears for the period he did not work on the post on the principle of 'No Work No Pay'.
Accordingly, the present O.A. deserves to be allowed and the same is allowed with the following directions:-
The impugned order dated 05.05.2025 (Annexure A-1), order dated 16.06.2023 (Annexure A-3), and order dated 04.07.2023 (Annexure A-2), insofar as they relate to withholding the applicant's regular promotion to the post of Superintending Engineer (E&M) against the panel year 2015-16 by invoking the deemed sealed-cover procedure on the basis of the charge-sheet dated 09.03.2021, are quashed and set aside.
The respondents are directed to give effect to the recommendation of the Review DPC dated 19.04.2023, whereby the applicant was assessed as 'FIT' for promotion to the post of Superintending Engineer (E&M) against the panel year 2015-16, and issue appropriate consequential promotion orders within 06 (six) weeks from the date of receipt of a certified copy of this order.
The applicant shall be accorded consequential notional seniority in the promotional post from the date on which he would have been promoted pursuant to the panel for the vacancy year 2015-16. His pay shall be fixed accordingly. The question of actual monetary arrears shall be regulated in accordance with applicable rules and instructions on the subject.
The disciplinary proceedings arising out of the charge-sheet dated 09.03.2021 shall remain unaffected by this order and the respondents shall be at liberty to bring the same to their logical conclusion in accordance with law. The present order shall not be construed as an expression of opinion on the merits of those proceedings.
Pending M.As., if any, shall also stand disposed of accordingly.
There shall be no order as to costs.