LexHARSH KUMAR SHARMA, IFS versus STATE OF PUNJAB & ANR.
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(2016] 9 S.C.R. 495 HARSH KUMAR SHARMA, IFS v .. STATE OF PUNJAB & ANR. (Civil Appeal Nos. 11231-11232of2016) DECEMBER 14, 2016. [A.K. SIKRI AND ABBAY MANOHAR SAPRE, JJ.] Service Law - Promotion - Result of promotion order - Kept in sealed cover by DPC - In view of criminal case against the appellant-employee (which was registered on direction of High Court in a Public Interest Litigation in respect of construction of golf course in a forest area) - Original application by the employee seeking opening of sealed cover and giving effect thereto - Administrative Tribunal allowed the application - High Court set aside the order of the Tribunal - On appeal, held: As per the Office Memorandums, the employee in respect of whom prosecution for criminal charge is pending, his assessment for promotion has to be kept in a sealed cover and is not to be given effect to - In the present case charge- sheet was filed before the meeting of DPC was held - Therefore, there is no fault in the action of resorting to sealed cover procedure - However, as per the Office Memorandum every sealed cover has to be reviewed in three months and no sealed cover can be operative after two years - In the present case no review has been done - Moreover, the persons involved in the main case (Public Interest Litigation) stand discharged and the public servants involved therein also stand promoted - Therefore, the appellant-employee could have been given ad-hoc promotion - Respondents are directed to consider the appellant for ad-hoc promotion. Disposing of the appeals, the Court HELD: 1.1 As per Office Memorandum dated 14.9.1992, . . the employee in respect of whom charge-sheet has been issued and the disciplinary proceedings are pending or in respect of whom prosecution for criminal charge is pending, his assessment is to be kept in a sealed cover and is not to be given effect to. Sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued. If the charge-sheet is filed in a criminal court, sealed cover procedure can be resorted to. The 495 A 8 c D E F G H 496 A B c D E F SUPREME COURT REPORTS [2016) 9 S.C.R. position contained in O.M. dated 14.09.1992 in respect of sealed cover procedure has been repeated in subsequent office memoranda. Vide O.M. dated 02.11.2012, the Ministry of Personnel, Government of India had issued certain clarification. In para 7, it is clarified that even after recommendation of the DPC, but before appointment of the officer, if any of the three situations arise i.e. (1) investigation, (2) prosecution and (3) conviction or acquittal, the case is deemed ti> be kept in sealed cover by virtue of para 7 of O.M. dated 14.09.1992.This O.M. further clarifies that criminal charge would be treated as pending in the case of criminal proceedings, on the date on which the complaint or a report of police officer, on which Magistrate takes cognizance, is made. It, thus, makes it clear that the date on which report of police is made would be the relevant date. [Paras 14, 16, 17, 20, 21, 22][504-A; 505-D-E; 506-E; 507-B, F-G; 508- A-B] 1.2 In the present case, charge-sheet was filed by the CBI, after completion of the investigation, on 09.12.2008 and the meeting of the DPC was held thereafter i.e. on 29.03.2011. It is correct to say that the date of reckoning should be the date on which the vacancy occurred and not the date on which the DPC was held. Therefore, move on the part of the DPC to resort to the sealed cover procedure is justified. [Paras 18, 19, 20)[506- G-H; 507-A-BJ Union of India and others v. KV. Jankiraman and others 1991 (3) SCR 790: 1991(4) SCC 109; Union of India and another v. R.S. Sharma, 2000 (3) SCR 151 : 2000 (4) SCC 394; Arindam Chattopadhyay and others v. State of West Bengal and others 2013 (4) SCC 152. P. Grover v. State of Haryana 1983 (3) SCR 654 : 1983 (4) sec 291 - referred to 2.1 However, the appellant had rightly contended that every G sealed cover has to be reviewed in three months and no sealed cover can be operative after two years, as per appended Government of India's instructions. In any case sealed cover had to be opened in the absence of any such review undertaken by the respondents. [Para 12)[503-D-EJ H 2.2 O.M. dated 14.09.1992 as well as other O.Ms. impress HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 497 A the necessity of ensuring that the disciplinary case/criminal
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