1) Heard Mr. N. Deka, learned counsel for the petitioner and Mr. B. Sarma, learned standing counsel for the respondents.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the non- implementation of the order of
promotion dated 15.05.2014 by which the petitioner was promoted to the post of Assistant Security Commissioner/ Assistant Commandant at Katihar
against an existing vacancy.
3) The learned counsel for the petitioner has referred to the stand taken in the writ petition and has submitted that prior to the issuance of the order of
promotion, the authorities had satisfied itself that no “Discipline and Appeal Rules†case is pending that the vigilance clearance had also been
obtained from the Zonal Office and only after the said exercise the Railway Board had issue the order of promotion dated 15.05.2014, wherein the
name of the petitioner appears at serial no. 47. However, on 21.05.2014, before the petitioner could join, a charge-sheet was submitted to him in
connection with an allegation of availing a house building advance for an amount of Rs.5,75,000/-from the Welfare Scheme of Railway Establishment
in the year 2012 with fabricated documents and not utilizing the advance for the purpose for which it was granted. On receipt of the charge-sheet, the
petitioner submitted his statement of defence on 23.05.2014. The departmental enquiry against the petitioner was started and as per the Enquiry
Report, the charges against the petitioner were proved. Resultantly, the competent authority, i.e. the Senior Divisional Security Commissioner/ RPF,
NF Railway, Lumding awarded punishment of reduction of rank from Inspector to Sub-Inspector for a period of 6 (six) months with non- cumulative
effect, and according to the petitioner the period of six months was with effect from 08.02.2015 to 07.08.2015. However, although the punishment
period was over, the respondents did not implement the order of promotion dated 15.05.2014. The learned counsel for the petitioner has submitted that
the said promotion order was not recalled and therefore, stood alive and was liable to be implemented. It is also submitted that presumably on the
same charges on which departmental enquiry had taken place, the Central Bureau of Investigation has also taken up investigation. The petitioner had
appeared before the Inspector of Police, CBI, ACB, Guwahati. The CBI Inspector had seized (i) the copy of order dated 08.02.2015, passed in the
departmental enquiry, and (ii) pay slip for the month of March, 2017 vide seizure memo dated 27.04.2017. It is submitted that as per his instructions, no
charge-sheet has been submitted by the CBI in connection with investigation taken up by them. It is submitted that there was no impediment for the
respondent authorities to give effect to his promotional order dated 15.05.2014 and as such the petitioner had served his advocate’s notice dated
15.05.2017 upon the Director General, RPF, Railway Board. The Deputy Director/ Sec (E) Railway Board by his reply letter dated 06.07.2017,
informed the petitioner that his promotion was subject to Discipline and Appeal Rules (DAR for short) /Vigilance/Criminal case clearance. The
learned counsel for the petitioner had submitted that the petitioner had served his representation dated 01.08.2017 to the Director General, RPF,
Railway Board, but the same was not responded to.
4) It is reiterated that the purported order of cancelling promotion already granted to the petitioner, if any, was never communicated to the petitioner. It
is also submitted that the petitioner has already been punished in the disciplinary proceeding in respect of the same set of facts on which promotion is
sought to be denied to him. It is further submitted that the disciplinary proceeding had culminated on 08.02.2015 and as such the period of punishment
in respect of reduction in rank from Inspector to Sub-Inspector for a period of six months would have ended on 07.08.2015. Therefore, it is submitted
that when neither any charge-sheet was submitted in connection with any CBI till 04.10.2010, nor any second disciplinary proceeding had been
instituted case against the petitioner till such date, i.e., 03.10.2016, the DPC could not have adopted seal-cover procedure in respect of the petitioner
while considering his case for promotion. It is submitted that the action of the respondent authorities is unfair, arbitrary, unreasonable and violative of
rights guaranteed under Article 14 of the Constitution of India. It is further submitted that the conditions precedent to deprive the petitioner of his
promotion did not exist and as the punishment awarded to him was without any cumulative process, the action of not giving effect to the promotional
order dated 15.05.2014, as such, the said actions are liable to be interfered with. In support of his submissions, the learned counsel for the petitioner
has relied on the following case citations, viz., (i) Union of India & Ors. Vs. K.V. Jankiraman & Ors., AIR 1991 SC 2010; (ii) Union of India & Ors.
Vs. Dr. Sudha Salhan, (1998) 3 SCC 394; (iii) Bank of India Vs. Degala Suryanarayana, (1999) 5 SCC 762; (iv) Union of India Vs. R.S. Sharma,
(2000) 4 SCC 394; (v) Delhi Jal Board Vs. Mahinder Singh, (2000) 7 SCC 210; (vi) State of U.P. Vs. Dinesh Singh Chouhan, (2016) 9 SCC 749.
5) Per contra, the learned standing counsel for the respondents has heavily relied on two OMs, bearing No. 22011/4/91-Estt(A) dated 14.09.1992 and
No. 22011/4/2007- Estt.(D) dated 28.04.2014, both issued by the Department of Personnel and Training, Ministry of Personnel, Pubic Grievances &
Pension and it is submitted that the said OMs were issued pursuant to the decision of the Supreme Court of India in the case of K.V. Jankiraman &
Ors. (supra). It has been submitted that after punishment has been imposed on the petitioner, not only the effect of the decision of the DPC to
promote the petitioner stands diluted, but vide order no. 2014/SEC (E)/PM-2/1 dated 08.09.2014, the Dy. Director/Sec (E), Railway Board had
cancelled the ad hoc promotion granted to the petitioner. Hence, it is submitted that the case of the petitioner would now have to be considered afresh
in the next DPC by taking note of the punishment imposed on the petitioner. The learned standing counsel for the petitioner has cited the following
cases, viz., (i) P.S. Sadasivaswamy Vs. State of T.N., (1975) 1 SCC 152; (ii) State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors., (1986) 4 SCC 566;
and (iii) K.V. Jankiraman (supra).
6) The learned standing counsel for the respondents had submitted that the petitioner was promoted by the purported order dated 15.05.2014.
However, thereafter, he had been punished with major penalty by order dated 08.02.2015, which had not only wiped away his promotion but the
petitioner had accepted his demotion to the post of Sub-Inspector. Thereafter, several persons had been promoted to the next higher post of Assistant
Security Commissioner/ Assistant Commandant between 15.05.2014 till date, who are not parties to this writ petition and whose rights would be
adversely affected if the petitioner is now directed to be promoted on the strength of order dated 15.05.2014. Thus, by referring to the case of P.S.
Sadasivaswamy (supra) and Nandlal Jaiswal (supra), it is submitted that delay on part of the petitioner to approach this Court had vitiated the writ
petition and as such the petitioner was not entitled to any relief.
7) Perused the materials on record, i.e. writ petition, affidavit-in-opposition filed by the respondents and affidavit-in-reply by the petitioner. It may be
mentioned that the respondents had served a copy of their affidavit-in-opposition on 29.08.2018 to the learned counsel for the petitioner, based on
which an affidavit-in-reply was filed by the petitioner. However, the said affidavit-in-opposition was actually filed before the Registry vide document
no. 167693 dated 11.02.2021, which is noted in order dated 24.03.2021.
8) It is the case of the petitioners that pursuant to the recommendation of the DPC, vide order no. 2014/SEC(E)/PM-2/1 dated 15.05.2014, the
petitioner had been promoted from the post of Inspector, Railway Protection Force to the post of Assistant Security Commissioner/ Katihar/NFR
against an existing vacancy. Therefore, neither the Charge-Sheet dated 21.05.2014 served upon the petitioner, nor the imposition of punishment of
reduction in rank from Inspector to Sub-Inspector for the period of six months with non- cumulative effect after promotion order was issued could not
have wiped away the promotion already granted to the petitioner. Whereas, the submissions of the learned counsel for the respondents is that the
promotion order, though passed, was not given effect to and/or not implemented and that before the promotion order was actually carried out, the
disciplinary enquiry against the petitioner had commenced and therefore, by virtue of the OMs referred, it would be deemed as if the DPC
recommendation was kept in a sealed cover and that the effect of promotion was wiped away on punishment being imposed on the petitioner.
Therefore, in order to appreciate the submissions of the learned counsel for the parties, it would be appropriate to examine the relevant paragraphs of
the three OMs, which were referred to by the learned standing counsel for the respondents.
9) The learned standing counsel for the respondents have referred to the three OMs mentioned herein before. The OM No. 22011/4/91 Estt.(A) dated
14.09.1992 is on the subject “Promotion of Government servants against whom disciplinary/ court proceedings are pending or whose conduct is
under investigation â€" procedure and guidelines to be followedâ€. The OM No. 22011/4/2007- Estt.(D) dated 28.04.2014 is on the subject
“Guidelines on treatment and effect of penalties on promotion â€" Role of Departmental Promotion Committee.†The OM No. 22034/4/2012-
Estt.(D) dated 02.11.2012, was issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of
India on the subject “Comprehensive review of instructions pertaining to vigilance clearance for promotion-regarding.†All these three OMs have
been issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India. It would be relevant
to extract (i) Para-7 of the OM dated 14.09.1992, (ii) Sub-para (e) and (f) of para-7 of the OM dated 28.04.2014, and (iii) para- 7 and 9 of the OM
dated 02.11.2012, which reads as follows:-
OM dated 14.09.1992
“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.â€
OM dated 28.04.2014
“7.(e) Para 7 of DoPT OM dated 14.09.1992 provides that the Government servant, who is recommended for promotion by the DPC, but
in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the
recommendations of the DPC are received but before he/she is actually promoted, will be considered as if his/her case had been placed in a
sealed cover by the DPC. He/she shall not be promoted until he/she is completely exonerated of the charges against him/her.
(f) If any penalty is imposed on the Government serant as a result of the disciplinary proceedings or if he/she is found guilty in the criminal
prosecution against him/her, the findings of the sealed cover/covers shall not be acted upon. His/her case for promotion may be considered
by the next DPC in the normal course and having regard to the penalty imposed on him/her (para 3.1 of DoPT OM dated 14.09.92).
OM dated 02.11.2012
“7. The law on sealed cover based on the judgment of the Apex Court in Union of India vs. K.V. Janakiraman etc. (AIR 1991 SC 2010),
is by now well settled. The O.M. dated 14.9.92 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 14.9.92.
9. For the purpose of vigilance clearance for review DPC, instructions exist in O.M. No. 22011/2/99-Estt.(A) dated 21.11.2002 that review DPC will
take into consideration the circumstances obtaining at the time of original DPC and any subsequent situation arising thereafter will not stand in the way
of vigilance clearance for review DPC. However, before the officer is actually promoted it needs to be ensured that he / she is clear from vigilance
angle and the provision of para 7 of O.M. No. 22011 / 4 / 91-Estt. (A) dated 14.09.1992 are not attracted.
10) In the case of Dr. Sudha Salhan (supra), the Supreme Court of India, had followed the ration laid down in the case of K.V. Jankiraman (supra)
and it was held as follows:-
“… We are also of the opinion that if on the date 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 officer, 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.â€
11) In the case of Bank of India (supra), The Supreme Court of India had observed as follows:-
“14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The
sealed cover procedure is now a well established concept in service jurisprudence. The procedure is adopted when an employee is due for
promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the
service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of
India v. K. V. Jankiraman, (1991) 4 SCC 109: AIR 1991 SC 2010). As on 1-1-1986 the only proceedings pending against the respondent
were the criminal proceedings which ended into acquittal of the respondent wiping out with retrospective effect the adverse consequences,
if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-
12-1991. In the year 1986-87 when the respondent became due for promotion and when the promotion committee held its proceedings, there
were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to
nor could the promotion in the year 1986-87 withheld for the D.E. proceedings initiated at the fag end of the year 1991. The High Court
was therefore right in directing the promotion to be given effect to which the respondent was found entitled as on 1-1-1986. In the facts and
circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion
earned on 1-1-1986.â€
12) In the case of Delhi Jal Board (supra), it was held as follows:-
“5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Art. 16 of the
Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of
his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary enquiry
exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the
disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary enquiry. The sealed cover
procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of
such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the
time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time
the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come
in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection.
There is, therefore, no question of referring the matter to a larger Bench.â€
13) In the case of K.V. Jankiraman (supra), the three Judge Bench had observed and held as follows:-
“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 would not take much time to collect the relevant evidence and finalise the charges.
What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on
behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions
are as follows: (ATC p. 196, para 39).
(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the
ground of pendency of a disciplinary or criminal proceedings against an official;
(2) *** *** ***
(3) *** *** ***
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge-sheet filed
before the criminal court and not before;
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full
Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the
promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the
said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee.
Thus read, there is no inconsistency in the two conclusions.
18. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.â€
14) It is seen that in the order of promotion dated 15.05.2014, it has been categorically and clearly mentioned that “Appointments of the above
officers are subject to DAR/Vigilance/ Criminal case clearance by the Railways. The officers should be advised that the above officiating
arrangement is purely on ad hoc basis and this promotion would not confer on them any claim for promotion on regular basis or for seniority.â€
15) Thus, there is no iota of doubt that the promotion which was offered to the petitioner by order dated 15.05.2014 was on officiating and/or ad hoc
basis, which was never contemplated to confer upon the petitioner any substantive right. It is not disputed that after the said order dated 15.05.2014,
no clearance in respect of DAR/Vigilance/ Criminal case was made in respect of the petitioner. Moreover, it is also not in dispute that even before the
promotion envisaged by order dated 15.05.2014 was given effect to, the petitioner had been demoted from the post of Inspector, RPF to Sub-
Inspector, RPF without any cumulative effect. Therefore, as the petitioner had been demoted to the rank of Sub-Inspector before the petitioner was
actually promoted on regular basis after DAR/Vigilance/ Criminal case clearance. Even if it is accepted that calculated from the date of order of
punishment, i.e. 08.02.2015, the period of demotion of the petitioner would have ended on 07.08.2015, but the respondent authorities did not issue any
formal order and/or DAR/ Vigilance/ Criminal Case clearance so as to effectually promote the petitioner to the substantive post of Assistant Security
Commissioner/ Assistant Commandant. On the contrary, vide order no. 2014/SEC (E)/PM-2/1 dated 08.09.2014, the Dy. Director/Sec (E), Railway
Board had cancelled the ad hoc promotion granted to the petitioner. Although the learned counsel for the petitioner has forcefully submitted that the
said order was never served on the petitioner. Nonetheless, the said document has been filed as Annexure-X to the affidavit-in-opposition filed by the
respondents, which has remained un-assailed. Hence, the Court is unable to accept that the petitioner could be deemed promoted from the post of
Inspector to the rank of Assistant Security Commissioner/ Assistant Commandant w.e.f. 15.05.2014 and that after the end of the period of his
demotion on 07.08.2015, the petitioner had become automatically eligible to be promoted on the strength of promotion order dated 15.05.2014, which
was merely ad hoc and/or officiating arrangement only. Even independent of the order no. 2014/SEC (E)/PM-2/1 dated 08.09.2014 issued by the Dy.
Director/ Sec (E), Railway Board, cancelling the ad hoc promotion granted to the petitioner, the Court is unable to accept that the order of ad hoc
and/or officiating promotion dated 15.05.2014 would create any substantive right in favour of the petitioner to claim regular promotion to the next
higher post.
16) In light of the discussions above, the cases of K.V. Jankiraman (supra), Dr. Sudha Salhan (supra), Degala Suryanarayana (supra), R.S. Sharma
(supra), Delhi Jal Board (supra) do not help the petitioner in any manner. As the respondent authorities have already cancelled/ revoked the promotion
of thepetitioner by herein before referred order dated 08.09.2014, this is not found to be a fit case to invoke the ratio laid down in the case of Dinesh
Singh Chouhan (supra), to mould reliefs in favour of the petitioner.
17) The merit of the claim of the petitioner has been gone into as the Court is not inclined to non-suit the petitioner on the strength of the ratio of the
case of P.S. Sadasivaswamy (supra) and Nandlal Jaiswal (supra).
18) Therefore, in view of the discussions above, this writ petition fails and the same is dismissed.
19) Before parting with the records, having noted from the contents of the letter dated 06.07.2017 (Annexure-7 of the writ petition) issued by the Dy.
Director/Sec.(E), Railway Board that with the approval of the then DIG/ RPF, the promotion order of the petitioner was cancelled. The said
communication is not under challenge. As per the said communication dated 06.07.2017, the case of the petitioner was considered for ad hoc
promotion to the rank of Assistant Security Commissioner by the Establishment Board on 25.02.2015, 08.06.2015 and 29.01.2016, but due to pendency
of charge-sheet and major penalty, the promotion of the petitioner was kept in sealed cover. It is further stated in the said communication that the
petitioner was again considered for promotion on 03.10.2016 and 04.10.2016, but a CBI case was pending against the petitioner as a result of which
the result of his consideration for ad hoc promotion was one again kept in sealed cover and that on 05.05.2017, report of the then status of DAR,
Criminal and Vigilance clearance had been called for. However, as on the date when the matter was heard on 20.07.2021, no material has been
produced by the learned standing counsel for the respondents that either any disciplinary proceeding was pending against the petitioner or that any
charge-sheet had been submitted by the CBI against the petitioner. The cases discussed above clearly envisage that sealed cover procedure is not to
be adopted merely because any case is lodged against the employee unless charge-sheet is submitted in any criminal case or if any disciplinary
proceeding has been initiated by submitting charge-sheet on the delinquent employee. Therefore, the respondent authorities are jointly and severally
owe a duty to follow the herein before referred (i) OMs No. 22011/4/91 Estt.(A) dated 14.09.1992; (ii) OM No. 22011/4/2007- Estt.(D) dated
28.04.2014; and (iii) OM F. No. 22034/4/2012-Estt.(D) dated 02.11.2012; all issued by the Department of Personnel and Training, Ministry of
Personnel, Pubic Grievances and Pensions, Govt. of India, upon which the learned standing counsel for the respondents has heavily relied upon. In the
event there no charge-sheet has been served on the petitioner in respect of any fresh disciplinary proceeding and/or if no charge-sheet has been filed
against the petitioner in any criminal case, and yet if the respondents do not take a decision of opening the sealed cover of DPC recommendations in
respect of the petitioner in terms of the said three OMs within a period of 4 (four) weeks from the date of this order, this order shall not prejudice the
petitioner in the event he agitates his grievance in an appropriate manner as he may be so advised.
20) There shall be no order as to cost.
