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JYOTSNA REWAL DUA, J. –

Petitioner feels aggrieved against the order dated 24.08.2023, whereby respondents have withdrawn the promotion given to him to the post of Sub-Inspector in Himachal Road Transport Corporation (HRTC).

2. Following facts of the case are not in dispute.

2(i) Petitioner joined the service of the respondent-Corporation in November 1997 as a Conductor. In due course, petitioner became eligible for promotion to the post of Sub-Inspector

2(ii) Respondent-Corporation convened meeting of the Departmental Promotion Committee (DPC) for considering the cases of the eligible incumbents for promotion to the post of Sub-Inspector. The said meeting was convened on 21.03.2023. Name of the petitioner was considered alongwith other eligible employees. The DPC in its recommendations held the petitioner fit for promotion. Name of the petitioner was recommended for promotion to the post of Sub-Inspector alongwith several others.

2(iii) Thirty posts of Sub-Inspectors i.e. twenty in General Category, seven meant for Scheduled Caste Category and three for Scheduled Tribe Category fell vacant up to 01.08.2023. In view of recommendations of the DPC convened on 21.03.2023, petitioner was promoted as Sub-Inspector on 02.08.2023.

2(iv) On 24.08.2023, respondent-Corporation withdrew the aforesaid promotion order of the petitioner on the ground that departmental proceedings were pending against him.

In the aforesaid background, petitioner has instituted this writ petition, seeking following substantive reliefs:-

“(i) That impugned order dated 24.08.2023, Annexure P-2 vide which promotion order of the post of sub-inspector of the present petitioner has been wrongly withdrawn may kindly be quashed and set aside.

(ii) That respondents may kindly be directed to take the joining of the petitioner for the post of sub-inspector as per the recommendation of DPC and as per the office order darted 02.08.2023 Annexure P-1 with all consequential benefits.”

3. Submissions

Learned counsel for the petitioner submitted that the departmental proceedings were initiated against the petitioner on 01.04.2023. The same culminated on 25.08.2023 in imposition of following penalty:-

“….. Reduction of his pay by one stage in the time-scale of pay for a period of one year with further directions that the delinquent official will not earn any increment of pay during the period of such reduction and on expiry of the period of reduction will not have the effect of postponing his future increments of pay and will not effect on his pensionary benefits etc. and the period w.e.f. 19.03.2023 to 08.05.2023 (51 days) sanctioned as commuted leave and the period w.e.f. 09.05.2023 to 30.05.2023 (twenty two days) as E.O.I. ( Leave without pay).

Further, he is strictly warned not to repeat such activity in future upon the said Sh. Dharminder Kumar, Conductor.”

The departmental proceedings were not pending against the petitioner on the date of convening of meeting of the DPC. Hence, such proceedings initiated later cannot be made the basis for withdrawing the promotion order.

Learned counsel for the respondents defended the impugned order and submitted that action taken by the respondents in withdrawing petitioner’s promotion was based upon provisions contained in Annexure 16.69 of the “Handbook on Personnel Matters –Volume-I”. The portion thereof pressed into service reads as follows:-

“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 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 O.M. i.e. para 16.32(2) will be applicable in his case also.”

Para 2 referred to in the above extracted para-7 reads 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.

2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above alongwith other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including ‘Unfit for Promotion’, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed ‘Findings regarding suitability for promotion to the grade/post of …………… in respect of Shri …………………….. (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri ……………………….’ The proceedings of the DPC need only contain the note ‘The findings are contained in the attached sealed cover’. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.

2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.”

4. Consideration

Heard learned counsel for the parties and considered the case file. The sole premise assigned by the respondents as canvassed by their learned counsel for withdrawing petitioner’s promotion is pendency of departmental proceedings against him. This ground does not hold good on account of following reasons: -

4(i) The record divulges that the departmental proceedings referred to by the respondents in their reply were actually initiated by issuance of memorandum of charges to the petitioner on 01.04.2023. The charge- memo was thus, issued to the petitioner subsequent to the convening of meeting of the DPC and the recommendations made by the DPC. It is an admitted fact that no charge-memo was pending against the petitioner on the date of convening of the DPC or on the date of recommendations made by the DPC, holding the petitioner fit for promotion to the post of Sub-Inspector.

4(ii). It would be profitable to refer to Union of India and others Vs. Anil Kumar Sarkar¹ [¹(2013)4 SCC 161]. In this decision, the Hon’ble Apex Court reiterated the law laid down in Union of India and Another Vs. K.V. Jankiraman² [²1991(4) SCC 109] that promotion cannot be withheld merely because some disciplinary / criminal proceeding was pending against an 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.” In that scenario, sealed covered procedure is required to be adopted by the DPC while considering the case of the delinquent employee for promotion to the higher post. Relevant portion of the judgment reads as under: -

16) It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V.Jankiraman and Others. The common questions involved in all those matters were:

“8……(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?.

Among the three questions, we are concerned about question No.1. As per the rules applicable, the “sealed cover procedure” is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over.

17. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is 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 should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.

In para 17, this Court further held:

17. … 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….”

After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that

“32 ….The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits…..We see no reason to interfere with this order. The appeal, therefore, stands dismissed.”

18. The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.

19 In Coal India Limited & Ors. vs. Saroj Kumar Mishra³ [³AIR 2007 SC 1706], this Court, in para 22, has held that:-

“18… A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued.”

20 In Coal India Limited and Others vs. Ananta Saha and Others⁴ [⁴(2011) 5 SCC 142], this Court held as under:

“27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a chargesheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor⁵ [⁵(2007) 6 SCC 694]”

21. We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued.

22. Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another vs. R.S. Sharma⁶ [⁶(2000) 4 SCC 394], submitted that in spite of decision of this Court in Jankiraman’s case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharma’s case (supra). Even though in the said decision, this Court has distinguished the decision in Jankiraman’s case (supra) and held that the same is not applicable to its case, in the light of the conditions mentioned in para 2 as well as para 7 of the office memorandum dated 14.09.1992 and of the categorical finding that none of the conditions mentioned therein has been fulfilled, we are of the view that the decision in R.S. Sharma’s case (supra) is not helpful to the case of the appellant.”

It is, thus, well settled that departmental proceedings can be said to have been initiated only upon issuance of the charge-memo/charge-sheet and not prior thereto. In case of initiation of departmental proceedings against an employee as on date of consideration of his case for promotion by the DPC, the sealed covered procedure is required to be adopted. The said sealed cover is to be opened after culmination of the departmental proceedings.

4(iii). In the instant case, charge- memo was issued to the petitioner admittedly on 01.04.2023, whereas, the DPC had already recommended petitioner’s name for promotion to the post of Sub-Inspector on 21.03.2023. Sealed cover procedure was not adopted by the DPC. The formal order promoting the petitioner on accrual of vacancies was passed on 02.08.2023. Petitioner figured at Serial No.1 in the promotion order.

Thus, in view of the law laid down in Jankiraman’s case², order dated 24.08.2023, withdrawing petitioner’s promotion to the post of Sub-Inspector is not in consonance with law. Petitioner’s case is not covered by Annexure 16.69 relied upon by the respondents.

4(iv) Another important aspect of the matter is that the charge-memo was issued to the petitioner under Rule 16 of the Central Civil Services (Classification, Control, and Appeal) Rules, 1965 [CCS(CCA) Rules, 1965 in short]. Rule 16 pertains to imposition of minor penalties specified under Rule 11. The charge- memo was not issued to the petitioner for imposition of major penalties under Rule 14. It is also a matter of record that pursuant to charge-memo dated 01.04.2023, that minor penalty had been imposed upon the petitioner on 25.08.2024. Promotion cannot be withheld on account of employer’s intention to initiate departmental proceedings for imposition of minor penalty upon an employee. In this regard, following observations of the Hon’ble Apex Court in Jagan Narain Vs. Food Corporation of India and others⁷ [⁷(2010)4 SCC 558] are relevant: -

“7. But the appellant relies on two circulars of the first respondent dated 13-12-2001 and 19-12-2001. The first circular dated 13-12-2001, reads thus:

"We have made a reference to the Headquarters about some clarifications relating to imposition of minor penalty/recovery from the individuals and not releasing promotions of various officers/officials involved in such cases. Clarification has been received which stipulates that in the cases where such recoveries have been ordered under minor penalty these recoveries can continue even in promoted capacity, therefore, there is no point to withhold such promotions. Since necessary clarification has already been received, all such cases which be reviewed and before 24- 12-2001, all such promotions should be released."

This was followed by another circular dated 19-12- 2001 issuing a consequential direction that promotion orders may be served in cases where orders have been released by the Zonal Office, but withheld by regional offices due to currency of recovery. The learned counsel for the appellant submitted that having regard to the said circulars, mere pendency of minor penalty proceedings, or imposition of orders of minor penalty for recovery in such proceedings should not result in withholding the promotion.

8. Seen in the background of the two circulars dated 13-12-2001 and 19-12-2001, it is evident that the promotion of the petitioner by order dated 24-1- 2005 was not the result of any oversight. It should be noticed that as on 24-1-2005, the minor penalty proceeding had come to an end by levying penalty of Rs 5000. Even as on 8-11-2004 what was pending was only a minor penalty proceeding. Therefore, having regard to the circulars dated 13-12-2001 and 19-12-2001, neither the pendency of minor penalty proceedings nor the imposition of minor penalty by way of recovery of Rs 5000 would come in the way of the employee being considered for promotion or being promoted. It therefore, follows that there was no justification for cancelling the said promotion dated 24- 1-2005. If the appellant was thus entitled to promotion and the cancellation of the promotion was not warranted, the case of the appellant being considered again for the very same promotion and adoption of sealed cover procedure in view of the pendency of subsequent disciplinary proceedings will not arise (vide Delhi Jal Board v. Mahinder Singh¹).”

Withholding of promotion is itself a minor penalty under Rule 11(ii) of the CCS(CCA) Rules. Without taking the disciplinary proceedings to their logical conclusion, such penalty cannot be imposed. It remains a fact that minor penalty of withholding of increments has now been imposed upon the petitioner. The effect of respondent’s withdrawing promotion order would result in imposition of two minor penalties upon him; The first-reduction of increments pursuant to the disciplinary proceedings and the other imposed per force i.e. withholding of promotion. This situation cannot be countenanced.

5. Conclusion

As a consequence of the charge memo issued to the petitioner on 01.04.2023, under Rule 16 of the CCS (CCA) Rules, 1965, minor penalty of withholding the increments has been imposed upon him on 25.08.2024. Departmental proceedings were not pending against the petitioner at the time of convening the meeting of DPC on 21.03.2023. It is not the case of the respondents that the DPC had adopted sealed cover procedure while considering case of the petitioner rather admittedly the DPC recommended name of the petitioner for promotion to the post of Sub-Inspector, HRTC. Based on the recommendations, petitioner was promoted as such. Respondents’ impugned action of withdrawing promotion order of the petitioner on the ground of pendency of departmental proceedings, cannot be sustained. The change memo was not only issued later in point of time to the recommendations made by the DPC, but was only for imposing minor penalty, which now stands imposed upon him. Withholding of promotion is itself a minor penalty under the CCS (CCA) Rules. Withdrawal of petitioner’s promotion would mean imposition of two minor penalties upon him; One reduction in increments etc. which is actually imposed as a result of disciplinary proceedings and the other that gets imposed upon him per force i.e. withholding his promotion. This situation cannot be allowed to sustain.

For the foregoing discussion, the writ petition succeeds and is allowed. Impugned order dated 24.08.2023 withdrawing petitioner’s promotion to the post of Sub-Inspector, is quashed and set aside. All consequences in law shall follow.

The pending miscellaneous application(s), if any, also stand disposed of.

Petition allowed.

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