Need Charge Sheet Issued to Hold Promotion of Government Servant

Bench comprising of Justice P. Sathasivam, Jagdish Singh Khehar

The Supreme Court of India in Union of India V. Anil Sarkar in Civil Appeal No. 2537 of 2013 (arising from Special Leave Petition) rejected the plea of the appellants that the respondent could not be promoted in view of the existence of the circumstance mentioned in Office Memorandum No. 22011/4/91-Estt (A) that provided procedure and guidelines that were to be followed in cases of promotion of government servants/employees against whom disciplinary/criminal proceedings were pending or whose conduct were under investigation. The Office memorandum issued by Department of Personnel and Training of Ministry of Personnel, Public Grievances and Pensions under Government of India provided that the cases of a government servants who were recommended for promotion by Department Promotion committee (DPC) shall be considered as a case placed in ‘sealed cover’ in cases where the circumstances mentioned in paragraph 2 of the memorandum arise after the receipt of recommendation from DPC but before the time when the government servant is actually promoted.

This appeal was filed by Union of India challenging the judgment and order passed by Guwahati High Court. The Guwahati High Court had directed the Railways to pass appropriate orders of promotion in favour of respondent after setting aside the Central Administrative Tribunal (CAT) judgment. The respondent had in the first instance filed original application to CAT seeking direction from the tribunal for promotion on the basis of recommendations of DPC convened on 26.2.2002 and 27.2.2000 wherein the respondent‘s name was included in the list of extended select panel. The respondent was working in Indian Railways Account department and was due to promotion to Group ‘A’ post of in Indian Railways Account Service (IRAS) on the basis of recommendations of DPC. The respondent was not promoted on the relevant date of 21.4.2003 by office order and his batch mates and juniors were promoted.

The railways had alleged that the respondent had committed acts of misconduct during the course of his employment in the year 1994 and therefore in view of these charges of misconduct, the respondent could not be promoted to the group ‘A’ post. The respondents was issued memorandum of charges after 4 months from the relevant date of promotion that is 13.8.2003 and 1.9.2003 respectively. The respondent was neither under any suspension nor was facing disciplinary proceedings on the relevant date when the promotion of made by office order and in view of this, the respondent challenged the non-consideration of his case by railways for promotion.

The appellant relying heavily upon the Office memorandum contended that the High Court was not justified in passing the order by placing reliance only upon paragraph 2 of the memorandum and submitted that the high Court should have considered both the paragraphs i.e. paragraph 2 and 7 for while passing the order. The Appellants submitted that the combined reading of the paragraphs suggested that the respondent could not be promoted unless the conclusion of disciplinary proceedings. The appellant submitted that the circumstance mentioned in paragraph 2 were in existence in the case of the respondent and in view of the combined reading of paragraph 2 and 7, the respondent could not be promoted until the conclusion of disciplinary proceedings.

Paragraph 2 of the Office memorandum provided that in case where the government servant is under suspension or had been served with a charge sheet and disciplinary proceedings are pending or is facing prosecution for a criminal charge and the said proceedings are pending then such details shall be brought to the notice of DPC at the time when the said government servant is in the consideration zone for promotion on recommendation of DPC.

Paragraph 7 of the office memorandum provided that in case any of the conditions present in paragraph 2 of the office memorandum are present, then, the DPC had to apply “sealed cover process” and the government servant shall not be promoted until final conclusion of disciplinary proceedings. Under the ‘sealed cover procedure”, the findings of entitlement to promotion are kept in a sealed cover and are opened only after the conclusion of disciplinary proceedings in cases when the government servants who are due to promotion are facing disciplinary proceedings.

The Apex Court rejected the contentions of the appellants and held that the High Court was fully justified in issuing directions based on paragraph 2 of the memorandum. The Court said that none of the conditions present in the memorandum were in existence on the relevant date of 21.4.2003 when the batch mates of the respondent were being promoted and observed that the respondent was not placed under suspension nor had disciplinary proceedings initiated/ pending against him on the relevant date. The Court also observed that charge sheet was issued to the respondent nearly four months after the said relevant date.

The court relying upon Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109 observed that the ‘sealed cover procedure’ is to be resorted to only after the charge sheet or charge memo is issued. The court observed that departmental proceedings are initiated only after the issuance of charge sheet or charge memo and observed further that pending preliminary investigation prior to the stage of issuance of charge sheet or charge memo shall not be sufficient to enable the authorities to adopt the said “sealed cover procedure”. The court said that promotion cannot be withheld merely on account of pending disciplinary/criminal proceedings and the benefit can be denied on in case where disciplinary proceedings are pending or charge sheet is issued at the time when promotion is to be made.

The Apex court relying on the above held that promotion of government servants against whom disciplinary proceedings are pending or whose conduct are under investigation cannot be withheld in case where there were absence of the presence of these above noted circumstance (paragraph 2 and 7) on the relevant date when promotion was to be made. The Apex Court upheld the judgment and order of High Court and directed the appellants to pass appropriate orders of promotion with consequential relief in favour of respondents.

Thus, the Apex Court held that pending disciplinary proceedings cannot be sole ground for denying promotion to government employee in case where charge sheet is not issued or no disciplinary proceedings lie against the government servant on the date when the promotion was made. The Court on the basis of Office Memorandum and Supreme Court judgments held that the “sealed cover procedure” whereby benefit of promotion is withheld cannot be adopted merely on the ground of prior preliminary investigations and departmental proceedings can said to be initiated only after charge sheet is issued and thereby the said procedure is to be adopted only after the charge sheet is issued.