Karnataka High Court
Sri Tharanath S Rathod vs State Of Karnataka on 10 April, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:20308
WP No. 11135 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 11135 OF 2026 (S-RES)
BETWEEN:
SRI THARANATH S. RATHOD
S/O. SHELU S. RATHOD,
AGED ABOUT 50 YEARS.
EXECUTIVE ENGINEER,
(CENTRAL HEAD QUARTERS AND
TECHNICAL SERVICE).
KHANIJA BHAVAN,
BENGALURU - 560 001.
...PETITIONER
(BY SRI. PUTTIGE R. RAMESH, ADVOCATE FOR
SRI. SRIKANTH A.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
Digitally INFRASTRUCTURE DEVELOPMENT,
signed by
CHANDANA PORT AND INLAND TRANSPORT DEPARTMENT,
BM VIKAS SOUDHA, BENGALURU - 560 001.
Location:
High Court of 2. THE DIRECTOR,
Karnataka PORTS AND INLAND WATER TRANSPORT
DEPARTMENT, BAITHKOL,
KARWAR - 581 302.
3. THE CHIEF SECRETARY
TO THE GOVERNMENT,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE, AGA FOR R1 TO R3)
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NC: 2026:KHC:20308
WP No. 11135 of 2026
HC-KAR
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING AND SETTING
ASIDE THE IMPUGNED ENDORSEMENT DATED 02.12.2025 PASSED
BY THE 2ND RESPONDENT, PRODUCED HEREIN AS ANNEXURE-E,
BEING ILLEGAL, ARBITRARY, NON-SPEAKING, AND CONTRARY TO
THE DIRECTIONS OF THIS HONBLE COURT IN W.P.NO.32863/2025
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks the following reliefs:
"(a) Issue a Writ of Certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned endorsement dated 02.12.2025 passed by the 2nd Respondent, produced herein as Annexure-E, being illegal, arbitrary, non-speaking and contrary to the directions of this Hon'ble Court in W.P.No.32863/2025;
(b) Issue a Writ of Mandamus directing the Respondents, and in particulars Respondent No.3 being the Appointing Authority, to forthwith convence the DPC Proceedings consider the Petitioner's case for promotion to the post of Superintending Engineer in accordance with the Sealed Cover Procedure as mandated by the Hon'ble Supreme Court in Union of India v. K.V. Janakiraman (1991) 4 SCC 109, and -3- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR pass appropriate orders within 4 weeks from the date of receipt of the certified copy of this order."
2. Heard learned Senior Counsel for the petitioner and learned AGA for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that the petitioner being an Executive Engineer (Head Quarters and Technical Services), Khanija Bhavan, Bangalore approached this Court in W.P.No.32863/2025, which was disposed of vide final order dated 05.11.2025 as hereunder:
"After arguing the matter for some time, learned counsel for the petitioner filed a memo seeking leave of this Court to withdraw the writ petition with a liberty to file a fresh representation to the respondents.
2. The memo is placed on record.
3. Accordingly, the writ petition is dismissed as withdrawn with the aforesaid liberty.
4. Liberty is reserved to the petitioner to submit a representation to the respondents within 30 days from the date of receipt of the copy of this order. If such a representation is made by the petitioner, the respondents are directed to consider the representation of the petitioner and pass an appropriate order in accordance with law within 15 -4- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR days from the date of receipt of the copy of the representation."
4. In pursuance of the said order passed by this Court, the petitioner having submitted a representation at Annexure - D dated 17.11.2025, the respondent No.2 proceeded to issue the impugned communication refusing to consider the request of the petitioner for promotion on the ground that there was no provision and that departmental enquiry was pending against the petitioner and as such, petitioner is before this Court by way of the present petition.
5. Learned Senior Counsel for the petitioner submits that notwithstanding the fact that the departmental enquiry is said to be pending against the petitioner, in the light of the principles laid down by the Hon'ble Apex Court in the cases of Union of India and Ors., Vs. K.V.Janakiraman and Ors - (1991) 4 SCC 109, and Union of India and Ors Vs. Anil Kumar Sarkar - (2013) 4 SCC 161, there is no impediment for the respondents to consider the request of the petitioner for grant of promotion and the sealed cover procedure is to be adopted in this regard and the present petition may be disposed of directing the respondents to consider -5- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the grant of promotion in favour of the petitioner by adopting a sealed cover procedure and with a direction to the respondents to complete the departmental enquiry as expeditiously as possible.
6. Per contra, learned AGA for the respondents submits that if reasonable time is granted, the respondents would consider the request of the petitioner for grant of promotion and also complete the departmental enquiry as expeditiously as possible in accordance with law.
7. In K.V.Janakiraman's case supra, the Hon'ble Apex Court held as under:
"Civil Appeal Nos. 3019, 3020 of 1987 and 3016 of 1988 arise out of the judgment dated March 2, 1987 [Venkata Reddy v. Union of India, (1987) 3 ATC 174 (Hyd) (FB)] delivered by the Full Bench of the Central Administrative Tribunal (hereinafter referred to as the 'Tribunal').
2. Civil Appeal Nos. 3018 and 3021 of 1987 arise out of the judgments dated April 24, 1987 and April 1, 1987 respectively of the Tribunal, Hyderabad Bench.
3. Civil Appeal Nos. 3083 and 4379 of 1990 arise out of the judgments dated March 2, 1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal -6- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR respectively and which are based on the aforesaid decision of the Full Bench of the Tribunal.
4. Civil Appeal Nos. 51-55 of 1990 arise out of the decision dated July 12, 1989 of the Tribunal, Chandigarh Bench.
5. Special Leave Petition (C) No. 1094 of 1990 arises out of the decision dated June 29, 1989 of the Tribunal, Bombay Bench.
6. Special Leave Petition (C) No. 2344 of 1990 arises out of the decision dated September 18, 1989 given by the Tribunal, Principal Bench, New Delhi.
7. Special Leave Petition (C) No. 11680 of 1991 arises out of the decision dated January 25, 1991 given by the Tribunal, Principal Bench, New Delhi.
8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are: (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? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? 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 -7- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR 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. Hence, the relevance and importance of the questions.
9. The Union of India and the other appellant- authorities have by these appeals challenged the findings recorded by the different Benches of the Tribunal in reply to one or the other of or all the aforesaid three questions, in the decisions impugned therein. While recording its findings, the Full Bench of the Tribunal has also struck down two provisions of the Central Government Memorandum of January 30, 1982 on the subject. We may, therefore, first refer to the said memorandum.
10. The Government of India (Deptt. of Personnel & Training) issued an Office Memorandum No. 22011/1/79. Estt.(A) dated January 30, 1982 on the subject of promotion of officers in whose cases "the sealed cover procedure" had been followed but against whom disciplinary/court proceedings were pending for a long time. The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (hereinafter referred to as the 'DPC') at the appropriate time -8- NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/court proceedings. However, no arrears of salary are paid in respect of the period prior to the date of actual promotion. The Memorandum goes on to state further that it was noticed that sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it is not intended to deprive them of promotion for such a long time. The Government, therefore, in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances can be mitigated and has laid down the following procedure in such cases:
-9-NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR "3.(i)(a) It may be ascertained whether there is any departmental disciplinary proceedings or any case in a court of law pending against the individual under consideration, or
(b) there is a prima-facie case on the basis of which a decision has been taken to proceed against the official either departmentally or in a court of law.
(ii) The facts may be brought to the notice of the Departmental Promotion Committee who may then assess the suitability of the official(s) for promotion to the next grade/post and for the purpose of this assessment, the D.P.C. shall not take into consideration the fact of the pending case(s) against the official. In case an official is found 'unfit for promotion' on the basis of his record, without taking into consideration, the case(s) pending against him, the findings of the D.P.C. shall be recorded in the proceedings. In respect of any other kind of assessment, the grading awarded by the D.P.C. may be kept in a sealed cover.
(iii) After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent D.P.Cs., if any, held after the first D.P.C. during the period the disciplinary/court proceedings may be pending, will also consider the officer's case and record their findings which will again be kept in sealed cover in the above manner.
In the normal course, on the conclusion of the disciplinary/court proceedings, the sealed cover or covers may be opened, and in case the officer is completely exonerated i.e. no statutory penalty, including that of censure, is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/court proceedings against him, may be determined with reference to the position(s) assigned to him in the findings in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The officer concerned may then be promoted, if necessary by reverting the juniormost officiating person, and he may be given a notional promotion from the date he would have been promoted, as determined in the manner indicated above. But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion.
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon. The officer's case for promotion may be considered in the usual manner by the next D.P.C. which meets in the normal course after the conclusion of the disciplinary/court proceedings. The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, 'warning' should not be issued as a result of such proceedings. If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed. This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him."
11. Clause (iv) of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned officer when the disciplinary/court proceedings are not concluded even after the expiry of two years from the date of the DPC which first considered him for promotion and whose findings are kept in the sealed cover, provided however that the officer is not under suspension. It is not necessary to reproduce that clause in extenso here. Suffice it to say that the Memorandum urges that in making the ad hoc promotion in such cases, his case should be placed before the DPC which is held after the expiry of the said period of two years, and the ad hoc promotion has to be made on the basis of the totality of the record of service etc.
12. Para 4 of the Memorandum states that if the officer concerned is acquitted in the court proceedings on the merits of the case or exonerated in departmental disciplinary proceedings, the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the date of the ad hoc promotion with all attendant benefits. In such cases, the sealed cover may be opened and the official may be assigned his place in the seniority list as he would have got in accordance with the recommendation of the DPC.
13. Paras 5, 6 and 7 of the Memorandum then read as follows:
"5. Where the acquittal in a court case is not on merits but purely on technical grounds, and the Government either proposes to take the matter to a higher court or to proceed against the officer departmentally, the appointing authority may review whether the ad hoc promotion should be continued.
6. Where the acquittal by court is on technical grounds, if the Government does not propose to go in appeal to a higher court or to take further departmental action, action should be taken in the same manner as if the officer had been acquitted by the court on merits.
7. If the officer concerned is not acquitted/exonerated in the court proceedings or the departmental proceedings, the ad hoc promotion already granted should be brought to an end by the issue of the 'further order' contemplated in the order of ad hoc promotion [Please see para 3(vi) above] and the officer concerned reverted to the post from which he was promoted on ad hoc basis. After such reversion, the officer may be considered for future promotion in the usual course by the next D.P.C."
14. To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh [(1991) 4 SCC 129 : (1986) 2 Scale 860] decided on September 26, 1986, the Government of India in the Deptt. of Personnel and Training issued another Office Memorandum No. 22011/2/86. Estt.(A) dated January 12, 1988 in supersession of all the earlier instructions on the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR subject including the Office Memorandum dated January 30, 1982 referred to above. There is no difference in the instructions contained in this and the earlier aforesaid Memorandum of January 30, 1982, except that this Memorandum provides in paragraph 4 for a six-monthly review of the pending proceedings against the government servant where the proceedings are still at the stage of investigation and if as a result of the review, the appointing authority comes to the conclusion on the basis of material and evidence collected in the investigation till that time, that there is no prima facie case in initiating disciplinary action or sanctioning prosecution, the sealed cover is directed to be opened and the employee is directed to be given his due promotion with reference to the position assigned to him by the DPC. A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a government servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken.
15. These differences in the two Memoranda have no bearing on the questions to be answered.
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
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR 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
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR 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 to 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.
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19. The Full Bench of the Tribunal, while considering the earlier Memorandum dated January 30, 1982 has, among other things, held [Ed.: See (1987) 3 ATC 174, 195 in para 36] that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them.
20. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings.
21. We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub- paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows:
"But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion."
22. This sentence is preceded by the observation that when the employee is completely exonerated on the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.
23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows:
"F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."
24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
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26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
27. To this extent we set aside the conclusion of the Tribunal on the said point.
28. The Tribunal has also struck down the following portion in the second sub-paragraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said sub- paragraph directs that "the officer's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR disciplinary/court proceedings". The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, "it not only violates Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution". The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the date when the sealed cover procedure was followed and the Review DPC should consider the findings in the sealed cover as also the penalty imposed. It is not clear to us as to why the Tribunal wants the Review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even when a penalty is imposed, amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.
29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.
30. In the circumstances, the conclusions arrived at by the Full Bench of the Tribunal stand modified as above. It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 12, 1988.
31. In the result, in Civil Appeal Nos. 3019 and 3020 of 1987 and 3016 of 1988 which arise out of the decision of the Full Bench, the Division Bench of the Tribunal to which the matters are remanded by the Full Bench, will dispose of the cases of the employee(s) involved in the appeals in the light of what we have held hereinabove.
Civil Appeal No. 3018 of 1987- 23 -
NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR
32. In this case, no charge-sheet was served on the respondent-employee when the DPC met to consider the respondent's promotion. Yet, the sealed cover procedure was adopted. 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 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. The Tribunal has further stated in the impugned order that its order would not mean that the disciplinary proceedings instituted against the respondent-employee should not go on. We see no reason to interfere with this order. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 3021 of 198733. In this case, the DPC did not consider the case of the respondent-employee for crossing efficiency bar w.e.f. September 14, 1983 on the ground that disciplinary proceedings were contemplated against him. We are, therefore, of the view that the Tribunal's direction that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar w.e.f. September 14, 1983 on the basis of his confidential record at the relevant date and without reference to the contemplated disciplinary proceedings is both proper and valid. In this case also the Tribunal has given the said direction without
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR prejudice to the right of the appellant-authorities to take any disciplinary action as might have been contemplated. This order also does not require any interference from this Court. Hence, the appeal stands dismissed. In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 3083 of 199034. In this case, the respondent-employee's case was considered for promotion by the DPC in August 1982. However, the result was kept in a sealed cover in view of the pending disciplinary proceedings against him. According to the employee, on October 11, 1985 the disciplinary proceedings ended in complete exoneration. Thereafter, a DPC was again constituted in March 1986 which, after consideration of the employee's case, recommended him for promotion w.e.f. July 26, 1986. This was obviously contrary even to the instructions contained in the Memorandum. He was entitled to promotion from the date his immediate junior was promoted in or after August 1982 if he was in August 1982 found fit for promotion by the DPC. The Tribunal has, therefore, rightly directed the appellant to open the sealed cover and if the DPC in 1982 had found him fit for promotion, to give him the promotion from the date on which his immediate junior was promoted. However, while doing so, the Tribunal has also directed arrears of salary to be paid for intervening period along with all consequential benefits. Since we have held disagreeing with the decision of the Full Bench of the Tribunal that the benefit of the arrears of salary will not flow automatically but will depend upon the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR circumstances in each case, we modify the said order to the extent it directs the payment of arrears of salary, and direct the appellant-authority to consider whether the employee in the circumstances of the case was entitled to any arrears of salary and to what extent. The authority will, of course, give reasons for denial of the whole or part of the arrears of salary. The appeal is, therefore, allowed partly with no order as to costs.
Civil Appeal No. 4379 of 199035. In this case, the respondent-employee was not recommended for promotion by the DPC in its meeting held on February 1, 1988. Instead, the DPC has kept the results in a sealed cover because of the pending disciplinary proceedings. Admittedly, no charge-memo was served on the employee till the date the DPC met on February 1, 1988. It was issued only on March 2, 1989. The Tribunal has, therefore, rightly directed the authorities to open the sealed cover. We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee's case as on February 1, 1988. If the DPC had considered the case of the employee on February 1, 1988 and withheld the result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellant-authority to open the sealed cover and if the employee was found fit for promotion, to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1, 1988. In case he is so found fit, he would be
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR entitled to the benefits of seniority etc. on a notional basis. However, whether he would be entitled to the arrears of salary for the intervening period and to what extent will have to be decided by the appellant-authority in the light of what we have stated above. In case the authority denies to the employee the salary in full or in part, it will, of course, record its reasons for doing so. The appeal is, therefore, allowed partly as above with no order as to costs.
Civil Appeal Nos. 51-55 of 1990
36. These appeals are filed against five respondent- employees. Disciplinary proceedings as well as criminal prosecutions were launched against each of them for lodging false Leave Travel Concession claims and for using forged documents to support them. The employees were suspended from service on July 15, 1983. They admitted guilt and pleaded revocation of their suspension on depositing the amount of Rs 1600. They were reinstated in service in November, 1983. Keeping in view the deposit of the amount voluntarily in October 1983, a lenient view was taken and the criminal prosecutions against them were dropped by the Administration by an order of January 14, 1985. However, this was done without prejudice to the departmental proceedings which were subsequently initiated and the formal charge-sheet was issued to the employees on December 24, 1987.
37. The Departmental Promotion Committee met in July 1986 to consider the cases of the employees for promotion but resorted to sealed cover procedure in view of
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the pendency of the disciplinary proceedings against them. There is no dispute that the formal charge-sheet was issued either on August or December 24, 1987. Conflicting months have been mentioned in the decision of the Tribunal.
38. However, we find that the Tribunal has taken a mechanical view and applied the decision of the Full Bench and directed the promotions to be given to the employees on the basis of the recommendations, if any, of the DPC of July 1986. We are of the view that in the present case when the DPC met in July 1986, the Committee had before it the record of the refund of the amount by the respondent- employees and the consequent withdrawal of the prosecutions without prejudice to the authorities' right to institute departmental proceedings.
39. In view of the aforesaid peculiar facts of the present case, the DPC which met in July 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge-sheet in the departmental proceedings was issued in August/December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary. We are of the view that even if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional benefits of seniority etc., the employees in no case should be given any arrears of salary. The denial of
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the benefit of salary will, of course, be in addition to the penalty, if any, imposed on the employees at the end of the disciplinary proceedings. We, therefore, allow these appeals as above with no order as to costs.
SLP (Civil) No. 1094 of 199040. Special leave granted.
41. The respondent-employee in this case was a Sepoy in the Department of Central Excise and Customs. He passed his Departmental examination for the post of Lower Division Clerk against 10 per cent vacancies and by letter of October 14, 1981, he was informed about his selection for the said post against the said vacancies reserved for educationally qualified Group-D staff. However, he was informed that his appointment order as LDC would be issued if he was exonerated from the disciplinary proceedings which were then pending against him. In the Departmental Inquiry, he was exonerated of all the charges and by an order of June 6, 1985 he was appointed to officiate as Lower Division Clerk. By the subsequent order of July 3, 1985, the earlier order of June 6, 1985 was made effective from September 25, 1981. By yet another order of July 29, 1985, his pay was fixed by giving him increment from September 25, 1981 but he was denied arrears of pay from that date till June 2, 1985. The employee did not challenge the said order denying him arrears of pay till he made his representation on February 18, 1988. To his representation a reply was sent that since he had not worked as LDC during the said period he was not entitled to the arrears of salary. By the impugned decision,
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the Tribunal has directed the authorities to grant to the respondent-employee his pay and allowance from September 25, 1981 to June 2, 1985.
42. In view of what we have held above, the appeal is allowed, the impugned order is hereby set aside and instead the appellant-authorities are directed to examine the question whether the respondent-employee was entitled to any salary and if so to what extent in the light of the view taken by us. The appellant-authorities will, of course, have to record reasons if the arrears of salary in its entirety or in part are denied to the employee. In the circumstances of the case, however, there will be no order as to costs.
SLP (Civil) No. 11680 of 199143. Special leave granted.
44. The order impugned in this appeal is an interim one whereby the Tribunal has directed the appellant-Union of India to open the sealed cover and if the result shows that the DPC has found the respondent-employee fit for promotion to the post of Commissioner of Income Tax, to give effect to the said recommendations. The admitted facts are that the DPC which met in 1988 had considered the respondent-employee's case for promotion to the post of Commissioner of Income Tax. However, since some departmental proceedings were pending against him, he was not given the said promotion. It was for the first time in 1990, that the appellants served on him a memorandum asking his explanation in respect of certain alleged acts of misconduct to which he sent a reply on May 18, 1990. Till the date of the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR impugned order of the Tribunal, i.e., January 1, 1991, no charge-sheet was served upon the respondent-employee. However, 12 persons junior to him were promoted by an order dated April 16, 1990. The Tribunal has, as stated above, therefore, made the impugned order. There is no direction in the order to pay him the arrears of salary for the interregnum. In the circumstances of the case, we do not think it necessary to interfere with the impugned order. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs.
SLP (Civil) No. 2344 of 199045. Special leave granted.
46. The peculiar facts in this case are that at the relevant time the respondent-employee was working as Superintending Engineer since July 1986. When earlier he was working as Garrison Engineer in Bikaner Division, there was a fire in the Stores in April 1984 and there were also deficiencies in the Stores held by the Store-keeper during the period between 1982 and 1985. Hence, disciplinary proceedings were commenced in February 1988 and the respondent was served with a charge-sheet on February 22, 1988. By an order of August 19, 1988 a penalty of withholding of increment for one year was imposed on the respondent as a result of the said disciplinary proceedings.
47. On June 3, 1988, the DPC met for considering the promotion to the Selection Grade. Pursuant to this meeting by an order of July 28, 1988 some juniors were given the Selection Grade with retrospective effect from July 30, 1988.
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR The respondent-employee's name was kept in a sealed cover and was, therefore, not included in the list of the promotee officers.
48. The Tribunal has found fault with the authorities on two grounds. The Tribunal has observed that although when the DPC met in June 1988, the employee was already served with a charge-sheet on February 22, 1988 and, therefore, the sealed cover procedure could not be faulted, since admittedly his juniors were given promotion with retrospective effect from July 30, 1986, the DPC should not have excluded the respondent's name from consideration when it met on June 3, 1988. The second fault which the Tribunal has found is that since the penalty of stoppage of increment was imposed at the end of the disciplinary proceedings, it was not open for the authorities to deny the respondent his promotion to the Selection Grade as that amounted to double penalty. Having taken this view, the Tribunal has directed that a Review DPC should consider the respondent's case for promotion w.e.f. July 1986 when his juniors were given promotion taking into account his performance and confidential records up to 1986. We are afraid the Tribunal has taken an erroneous view of the matter. Admittedly, the DPC met in June 1988 when the employee was already served with the charge-sheet on February 22, 1988. The charge-sheet was for misconduct for the period between 1982 and 1985. Admittedly further, the employee was punished by an order of August 19, 1988 and his one increment was withheld. Although, therefore, the promotions to his juniors were given with retrospective effect
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR from July 30, 1986, denial of promotion to the employee was not unjustified. The DPC had for the first time met on June 3, 1988 for considering promotion to the Selection Grade. It is in this meeting that his juniors were given Selection Grade with retrospective effect from July 30, 1986, and the sealed cover procedure was adopted in his case. If no disciplinary proceedings were pending against him and if he was otherwise selected by the DPC he would have got the Selection Grade w.e.f. July 30, 1986, but in that case the disciplinary proceedings against him for his misconduct for the earlier period, viz., between 1982 and 1985 would have been meaningless. If the Tribunal's finding is accepted it would mean that by giving him the Selection Grade w.e.f. July 30, 1986 he would stand rewarded notwithstanding his misconduct for the earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC and for which again he was visited with a penalty. We, therefore, allow the appeal and set aside the finding of the Tribunal. There will, however, be no order as to costs.
49. Before we part with these appeals, we make it clear that if any of the respondent-employee(s) in any of the above appeals has/have been given any benefits the same will not be disturbed."
8. So also, in Anil Kumar Sarkar's case supra, the Hon'ble Apex Court held as under:
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR "Delay condoned. Leave granted. This appeal is directed against the judgment and order dated 27-4-2010 passed by the Gauhati High Court at Guwahati in Writ Petition (C) No. 744 of 2010 whereby the Division Bench of the High Court allowed the writ petition filed by the respondent herein and set aside the order dated 21-8-2009 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati in OA No. 251 of 2007.
Brief facts
2. Anil Kumar Sarkar, the respondent herein, joined the Northern Railways as a Junior Clerk on 4-11-1977. He was promoted to various posts and while he was working as Senior AFA/T-1 in the office of the Financial Adviser and Chief Accounts Officer of Northeast Frontier (NF) Railway at Maligaon, a Departmental Promotion Committee (DPC) was convened by the Union Public Service Commission (UPSC) on 26-2-2002 and 27-2-2002 to consider eligible Group B officers of the Accounts Department for their substantive promotion to Group A (Junior Scale) of Indian Railways Accounts Service (IRAS) against the vacancies for various zonal railways/production units. In the said DPC, the respondent's name was also considered against the vacancies in NF Railway for the year 2001-2002 and accordingly, his name was placed in the extended select panel.
3. It was alleged by the appellants herein that during the year 1994-1995, while the respondent was working as Assistant Accounts Officer in the Central Stores Accounts
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR (Bills) in the office of the Financial Adviser and Chief Accounts Officer (Open Line), NF Railway, Maligaon, he committed gross misconduct in the matter of checking and passing the bills of various firms involved in manufacturing and supplying of cast iron sleeper plates to NF Railways. For the said acts, four memorandums of charges were issued to the respondent, out of which two were issued on 13-8-2003 and others on 1-9-2003 and 5-11-2003. On the basis of the said memorandums, four departmental proceedings were initiated against the respondent at three different places i.e. Delhi, Kolkata and Guwahati, enquiries were completed and show-cause notices were served.
4. Based on the similar charges, in the year 2004, CBI lodged 11 FIRs against the respondent herein on different dates under Sections 120-B/420 of the Penal Code, 1860 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and accordingly, cases were registered against him. Subsequently, 11 cases were amalgamated into 3 cases being numbered as Special Cases Nos. 59, 60 and 62 of 2004. According to the appellants, on the basis of these charges, the respondent was not promoted to Group A (Junior Scale).
5. By office order dated 21-4-2003, the batchmates of the respondent were promoted. Being aggrieved, the respondent herein filed several representations to the Department for consideration of his case for promotion which were duly rejected. Challenging the non-consideration of his case for promotion, the respondent filed OA No. 251 of 2007
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR before the Central Administrative Tribunal, Guwahati Bench for a direction to the appellants herein to promote him to Group A (Junior Scale) of IRAS w.e.f. 5-3-2002 in terms of the recommendations of the DPC held on 26-2-2002 and 27- 2-2002 wherein his name figured in the extended panel list. Vide order dated 21-8-2009, the Tribunal dismissed his application.
6. Challenging the order of the Tribunal, the respondent herein filed a petition being WP (C) No. 744 of 2010 before the Gauhati High Court. The High Court, by impugned order dated 27-4-2010, allowed the petition and set aside the order passed by the Tribunal and directed the appellants herein to issue appropriate order in favour of the respondent herein for promotion with all consequential benefits. Challenging the said order, the Union of India has filed this appeal by way of special leave.
7. Heard Mr Mohan Jain, learned Additional Solicitor General for the Union of India and Mr Rakesh Kumar Singh, learned counsel for the respondent.
Contentions
8. Mr Mohan Jain, learned ASG, after taking us through the Office Memorandum dated 14-9-1992 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, submitted that Para 2 of the said memorandum has to be considered along with Para 7 of the same. According to him, the High Court is not justified in considering Para 2 of the memorandum alone. He further submitted that at the relevant time, four charge-
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR sheets were issued to the respondent and enquiries were completed and notices to show cause had already been served upon the respondent.
9. On the other hand, Mr Rakesh Kumar Singh, learned counsel for the respondent submitted that as on the date i.e. 21-4-2003, when his juniors were promoted, neither the respondent was under suspension nor any charge-sheet was served upon him and he was not facing any criminal prosecution, hence, there was no impediment in promoting him.
10. We have carefully considered the rival submissions and all the relevant materials including the decision of the Tribunal and the impugned order of the High Court.
Discussion
11. There is no dispute as to the fact that Office Memorandum No. 22011/4/91-Estt(A), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi dated 14- 9-1992 is applicable to the case on hand. In fact, the learned ASG appearing for the appellants and the learned counsel for the respondent heavily relied on the said memorandum. The relevant paragraphs for our present purpose are Paras 2 and 7 which are reproduced hereunder:
"No. 22011/4/91-Estt(A) Government of India Ministry of Personnel, Public Grievances and Pensions
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR Department of Personnel and Training North Block, New Delhi 110 001 Dated: 14-9-1992 OFFICE MEMORANDUM Subject: Promotion of government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Procedure and guidelines to be allowed.
Board's In supersession of all instructions
L/No. E contained in Board's letters referred
(D&A) to in the margin on the above
88RG6-21 subject, the procedure and
dated 21-9- guidelines laid down below shall be
1988 and followed in the matter of promotion
2-7-1990 from Group B to Group A and within
Group A of Railway Officers against
whom disciplinary/court proceedings are pending.
2. Cases of government servants to whom sealed cover procedure will be applicable.--At the time of consideration of the cases of government servants for empanelment 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;
(iii) Government servants in respect of
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR whom prosecution for a criminal charge is pending.
***
7. Sealed cover procedure applicable to officers coming under cloud holding of DPC but before promotion.--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 the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also."
12. It is not in dispute that the respondent had joined the Northern Railways as a Junior Clerk on 4-11-1977, and got promoted time and again. While he was working as a Group B officer, his case was taken up for promotion to Group A (Junior Scale) of the Indian Railways Accounts Service (IRAS). It is also not in dispute that in the meetings of the DPC conducted on 26-2-2002 and 27-2-2002, the respondent's name was considered and he was placed in the extended select panel. It is further seen that up to 21-4-2003, the date on which the respondent's batchmates were promoted to IRAS, neither any criminal proceedings was initiated against him nor any departmental enquiry was initiated, nor was any charge-sheet served upon him and nor
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR was he placed under suspension. Aggrieved by the non- consideration of his representations for promotion, the respondent filed OA before the Central Administrative Tribunal. The learned counsel for the Railways, by placing reliance on the Office Memorandum dated 14-9-1992, contended before the Tribunal that a government servant who is recommended for promotion by the DPC and in whose case the circumstances mentioned in Para 2 are in existence, he shall not be promoted. Accepting the above stand of the Railways, the Tribunal rejected the petition filed by the respondent herein.
13. Aggrieved by the said decision of the Tribunal, the respondent herein filed a petition before the High Court, wherein, the said memorandum, particularly Para 2, was pressed into service. The High Court, taking note of the conditions prescribed in Para 2 and in the absence of any such condition as on the relevant date i.e. 21-4-2003, set aside the order of the Tribunal and directed the Railways to consider the case of the respondent for promotion.
14. As per Para 2 of the said memorandum, at the time of 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; (ii) Government servant has been served with a charge-sheet and the disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR charge and the said proceedings are pending. As rightly observed by the High Court, if the above 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 21-4-2003, when the respondent's batchmates were promoted, admittedly on that date the respondent was not under suspension, no charge- sheet was served upon him nor was he facing any criminal prosecution. In such circumstances, in terms of Para 2 referred to above, the recommendation of the DPC has to be honoured and there is no question of applying "sealed cover process".
15. Mr Mohan Jain, learned ASG submitted that Para 2 has to be read along with Para 7 of the Office Memorandum dated 14-9-1992. We have already extracted Para 7 of the memorandum which 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 he is actually promoted, will be considered as if his case has been placed in a sealed cover by the DPC. After extracting Para 2, we also highlighted the three conditions prescribed therein. Though, the learned ASG has mentioned that four charge-sheets were issued to the respondent, enquires were completed and show-cause notices had already been served on the respondent, on the relevant date, namely, 21-4-2003, when his batchmates were promoted, none of the conditions was in existence in the case of the respondent. Admittedly, the
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR respondent was not placed under suspension, charge-sheet had been issued only on 13-8-2003 i.e. nearly after 4 months, no disciplinary proceedings were initiated or were pending as on 21-4-2003. In such circumstances, we are of the view that the High Court is fully justified in issuing the direction based on Para 2 of the memorandum. No doubt, the learned ASG heavily relied on the later part of Para 7 of the memorandum which reads as under:
"He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also."
Inasmuch as none of the circumstances was in existence as on 21-4-2003, reliance placed on the later part of Para 7 cannot be accepted or even not be applicable.
16. It is not in dispute that an identical issue was considered by this Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] . The common questions involved in all those matters were: (SCC p. 114, para 8) "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 1. As per the rules applicable, the "sealed cover procedure" is adopted when an employee is due for promotion, increment, etc. but disciplinary/criminal
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR 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: (K.V. Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] , SCC p. 118, para 16) "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
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR 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: (K.V. Jankiraman case, SCC p. 119) "17. ... Conclusion 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:
(K.V. Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] , SCC p. 124, para 32) "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 his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated 30-
4-1986. 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."
(emphasis supplied)
18. The principles laid down with reference to similar office memorandum are applicable to the case on hand and
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR the contrary argument raised by the appellant Union of India is liable to be rejected.
19. In Coal India Ltd. v. Saroj Kumar Mishra this Court, in AIR para 22, has held that: (SCC p. 632, para 18) "18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
20. In Coal India Ltd. v. Ananta this Court held as under:
(SCC p. 155, para 27) "27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman and UCO Bank v. Rajinder Lal Capoor .)"
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. The learned ASG, by drawing our attention to the decision of this Court in Union of India v. R.S. Sharma [(2000) 4 SCC 394 : 2000 SCC (L&S) 653] submitted that in spite of the decision of this Court in Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] in view of Para 7 of the Office Memorandum and in the light of the fact that proceedings were initiated both criminal and departmental, the High Court committed an error by overlooking Para 7 of the 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.
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR Sharma case [(2000) 4 SCC 394 : 2000 SCC (L&S) 653] . Even though in the said decision, this Court has distinguished the decision in Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] 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 14-9-1992 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 case [(2000) 4 SCC 394 : 2000 SCC (L&S) 653] is not helpful to the case of the appellant.
23. In the light of the above discussion and in view of the factual position as highlighted in the earlier paras, we hold that the ratio laid down in Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] is fully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs."
9. In view of the aforesaid facts and circumstances and upon perusal of the impugned communication at Annexure - E dated 02.12.2025, it is clear that the respondents have referred to departmental enquiry said to be pending against the petitioner for the purpose of intimating him that it is not permissible to consider his request for promotion. Under these circumstances, in the light of the judgments of the Hon'ble Apex Court in the case of
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NC: 2026:KHC:20308 WP No. 11135 of 2026 HC-KAR K.V.Janakiraman and Anil Kumar Sarkar (supra), I deem it just and appropriate to dispose of this petition by issuing certain directions.
10. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The respondents are directed to consider the request of the petitioner for grant of promotion by adopting a sealed cover procedure and without reference to Annexure-E dated 02.12.2025 and keep the result of the decision in a sealed cover, within a period of three months from the date of receipt of a copy of this order.
iii) In addition thereto, the respondents are directed to complete the departmental enquiry said to be pending against the petitioner within a period of six months from today.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE MDS List No.: 2 Sl No.: 22