LexUNION OF INDIA & ORS. versus ANIL KUMAR SARKAR
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A B [2013) 2 S.C.R. 396 UNION OF INDIA & ORS. v. ANIL KUMAR SARKAR (Civil Appeal No. 2537 of 2013) MARCH 15, 2013 [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.] SERVICE LAW· c Promotion - Sealed cover procedure - Recommendation of DPC for promotion of respondent not given effect to on the ground that subsequently memorandum of charges were issued to him - Held: When respondent's batch mates were promoted, admittedly, on that date he was not under 0 suspension, no charge sheet was served upon him nor was he facing any criminal prosecution - In such circumstances, in terms of paragraph 2 of O.M. dt. 24.09.1992, recommendation of DPC has to be honored and there is no question of applying 'sealed cover process' - Government of E India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training O.M. No. 22011141911 Estt.(A) dated 24.9.1992. Disciplinary proceedings - Commencement of - Held: Disciplinary proceedings commence only when a charge F sheet is issued. The respondent, while working as Senior AFA/T-1 in North-east Frontier Railway, was considered by the Departmental Promotion Committee convened on G 26.2.2002 for promotion of Group 'B' Officers of Accounts Department to Group A (Jr. Scale) of Indian Railways Accounts Service and his name was placed in the extended select panel. By office order dated 21.4.2003, the batch-mates of the respondent were promoted but he H 396 UNION OF INDIA & ORS. v. ANIL KUMAR SARKAR 397 was not promoted. He, therefore, filed representations, A which were rejected. He then filed an 0.A. before the Central Administrative Tribunal. It was the case of the department that during the year 1994-95, the respondent committed gross misconduct in the matter of checking and passing of bills of various firms, for which four B memorandum of charges were issued to him on 13.8.2003, 1.9.2003 and 5.11.2003. Further, on similar charges an FIR was lodged by CBI, and 3 special cases were registered against him in the year 2004. The Tribunal dismissed the O.A. But the High Court allowed the writ c petition of the respondent. Dismissing the appeal filed by the department, the Court HELD: 1.1 There is no dispute as to the fact that the D , Office Memorandum No. 22011 /4/91-Estt(A), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, New Delhi dated 14.09.1992 is applicable to the case on hand. As per paragraph 2 of the memorandum, at the time of E consideration of the Government servants for promotion, the following details of Government servants In the consideration zone for promotion falling in the categories mentioned should be specifically brought to the notice of the DPC, viz., (I) Government servant is under suspension; F (ii) Government servant has been served with a charge sheet and the disciplinary proceedings are pending; and (Ill) Government servant Is facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, If the above G conditions are available, even one of them, then the DPC has to apply the 'sealed cover process'. In the case on hand, It Is not In dispute that the relevant date Is 21.04.2003, when the respondent's batch-mates were promoted, admittedly, on that date the respondent was not under H suspension, nor any charge sheet was served upon him 398 SUPREME COURT REPORTS [2013] 2 S.C.R. A nor was he facing any criminal prosecution. In such circumstances, in terms of paragraph 2, the recommendation of the DPC has to be honored and there is no question of applying 'sealed cover process'. [para 8 and 11] [402-D-E, 405-E-H; 406-A] B 1.2 Paragraph 7 of the memorandum makes it clear that a government servant, who is recommended for promotion by the DPC, if any of the circumstances mentioned in para 2 of the said memorandum arises after the recommendations of the DPC are received, but before C he is actually promoted, will be considered as if his case has been placed in a sealed cover by the DPC. On the relevant date, namely, 21.04.2003, when batch mates of the respondent were promoted, none of the conditions was in existence. Admittedly, the respondent was not D placed under suspension, charge sheet was issued only on 13.08.2003 i.e. nearly after 4 months, no disciplinary proceedings were initiated or pending as on 21.04.2003. Disciplinary proceed
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