Central Administrative Tribunal - Gauhati
Sri Sanjay Kumar Jha vs Navodaya Vidyalaya Samiti on 16 May, 2026
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 043/00187/2023
HON'BLE MR RAJINDER SINGH DOGRA, JUDICIAL MEMBER
HON'BLE MR SANJIV KUMAR, ADMINISTRATIVE MEMBER
Sanjay Kumar Jha, Son of Sri Hari Narayan Jha, C/o: R.
Basaiawmoit, House No. 302, Ward No. 03, Hopkinson Road,
Lower Lachumiere, Meghalaya. Shillong: 793001.
...Applicant
-AND-
1. Union of India, represented by the Secretary, Department of
School Education & Literacy, Shastri Bhawan, Dr Rajendra Prasad
Rd, Rajpath Area, Central Secretariat, New Delhi-110001.
2. Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh 201307.
3. Navodaya Vidyalaya Samiti, Regional Office, Shillong, Barik
Point, Buddhist Temple Rd, Lower, Lachumiere, 793001. Shillong,
Meghalaya.
4. The Commissioner, Navodaya Vidyalaya Samiti, B-15,
Institutional Area, Sector 62, Noida, Uttar Pradesh.
5. Dr. Binay Kumar Sinha, Navodaya Vidyalaya Samiti Regional
Office, 7/24 Gomti Nagar Extension, Near Police Head Quarters,
Shaeed Path, Lucknow-226010, Uttar Pradesh.
6. Smt. Neelam Pani, Assistant Commissioner, Navodaya
Vidyalaya Samiti Regional Office, A-135-A, Gate No.2, Alkapuri,
Bhopal-462024, Madhya Pradesh.
...Respondents
Present:
For applicant(s): Shri S. Chakraborty
For respondents: Smt. R.S. Choudhury, NVS SC
Date of Hearing: 12.05.2026 Date of Order: 16.05.2026
O.A. No/187/2023
PRASANNA Digitally
PRASANNA
signed by
BASUMATARYBASUMATARY
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ORDER
PER: SANJIV KUMAR, MEMBER (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:
"8.1 To set aside/quash the impugned order dated 19.07.2021 by which the penalty of 'Censure' has been imposed upon the applicant.
8.2 To set aside/quash the impugned order dated 22.11.2021 to the extent that it states that the promotion of the applicant shall take effect from the date of his assuming of charge of the promotional post.
8.3 To set aside/quash the tentative seniority list dated 01.06.2022.
8.4 To direct the respondent authorities to hold a review DPC and grant promotion to the applicant to the cadre of Assistant Commissioner from the date on which his juniors were promoted to the cadre of Assistant Commissioner.
8.5. To correct the seniority position in the cadre of Assistant Commissioner by placing the applicant above his juniors in the cadre of Principal.
8.6 Any other relief(s) to which the applicant is entitled to, under the facts and circumstances of the case as may be deemed fit and proper by the Hon'ble Tribunal."
2. The applicant is presently working as Assistant Commissioner, NVS Regional Office, Shillong. While he was working in the cadre of Principal, NVS, a DPC meeting was O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 3 held on 17.09.2019 wherein names of certain Principals, who were junior to the applicant, were recommended for promotion to the cadre of Assistant Commissioner. Inspite of being eligible, the applicant was deliberately not considered. Subsequent to the promotion of officers junior to the applicant to the cadre of Assistant Commissioner, applicant was reverted back to the post of Principal at JNV, Dhanbad vide order dated 01.11.2019. Surprisingly, just after a few days of such DPC recommendation, a Memorandum of charges was issued to the applicant on 22.11.2019 alleging 4 charges against him. In pursuance to the Memorandum of charges, an Inquiry was conducted and out of the 4 charges, 2 could not be proved and the remaining 2 charges were stated to be partially proved. The applicant submitted representation against the Inquiry report, however, without even considering the representation of the applicant, the impugned order dated 19.07.2021 was issued imposing the penalty of censure upon the applicant. The non- consideration of the representation submitted by the applicant is a clear violation of the mandate of Rule 15(4) of O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 4 the CCS (CCA) Rules, 1965 and as such, on the said count alone, the impugned order of penalty is bad in law.
3. Thereafter, the applicant requested the authorities to promote him to the cadre of Assistant Commissioner from the date on which his juniors were promoted to such cadre. The same should have been done since, firstly, on the date of the DPC recommendation dated 17.09.2019, there was no departmental proceeding pending against the applicant and as such, he ought to have been considered for promotion and secondly, the applicant having been imposed the minor penalty of censure, he ought to have been promoted retrospectively by holding a review DPC. However, the authorities in a most illegal and arbitrary exercise of powers, deprived the applicant of his legitimate entitlement and promoted him to the cadre of Assistant Commissioner without granting him the benefit of retrospective promotion. Due to such illegal action of the respondent authorities the applicant has been placed below his juniors in the impugned seniority list of Assistant Commissioners dated 01.06.2022. Being aggrieved by the O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 5 illegal action on the part of the authorities of denying the applicant the benefit of retrospective promotion from the date of promotion of his juniors, the applicant has filed the present original application.
4. Respondent Nos. 2, 3 & 4 filed written statement and stated that on 16.09.2019 on the basis of an internal audit of JNV, Saraikela (Bihar), financial irregularities (Misappropriation of Rs.7,38,436) was noticed during the period 01.01.2017 to 30.10.2018, while the applicant was working as Principal in the said JNV. It is imperative to note that the Applicant was the Drawing and Disbursing officer. Accordingly Disciplinary Action was contemplated against the applicant. Accordingly, vide the letter dated 11.07.2019, the consultant to NVS Smti Manikuntala Sarkar wrote to the Commissioner Administration of NVS for taking necessary disciplinary action against the applicant. It is further essential to state that during the course of the next few days, several internal communications were held within the department between the Joint Commissioner (Personnel), the Commissioner NVS as well as the Consultant Smti Manikuntala Sarkar between 12.09.2019 to 16.09.2019. In fact, on O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 6 16.09.2019, a draft charge sheet had already been placed on record for approval. However, due to administrative exigencies the said charge sheet could not be approved. A charge sheet with four distinct allegations, all pertaining to financial malfeasances was issued against the Applicant, during his tenure as Principal at JNV, Jharkhand on 22.11.2019. In the meantime on 17.09.2019, a departmental promotion committee was convened for considering the promotion of Principals to the post of Assistant Commissioner in NVS. While considering the case of the Applicant, it was noticed that a Disciplinary proceeding is contemplated against him and hence the DPC in its own wisdom kept the case of the applicant in sealed cover. The DPC further recommended 13 other incumbents for promotion to the post of Assistant Commissioner. As per the respondents, case of the applicant was also kept in sealed cover, considering the fact that the vigilance clearance was not available in the case of the applicant.
5. Respondents further states that the formal charge sheet was issued on 22.11.2019 with 4 articles of charge and based on the four allegations mentioned therein, disciplinary O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 7 proceedings were initiated against the applicant, and for such reasons the DPC did not select the applicant for promotion to the post of Assistant Commissioner. That vide letter 22.11.2019 the applicant was given opportunity to submit his written defense. However, in the applicant's written defense vide letter 05.12.2019, the applicant failed to counter the charges effectively in his reply. Taking into account all the records, the DPC imposed a penalty of 'Censure' on the applicant.
6. Respondents further states that on 02.11.2021 another DPC meeting was held and the applicant's case for promotion to the post of Assistant Commissioner was considered. Considering the fact the DP against the applicant had in the meanwhile reached its conclusion and the applicant had been exonerated on the basis of the penalty of 'Censure' which was imposed on him, the DPC found him fit to be promoted as Assistant Commissioner. Accordingly, vide the minutes dated 02.11.2021, the name of the applicant was paced at Sl. No. 1 of the select list. It is further relevant to state that a tentative seniority list dated 01.06.2022 was circulated in which Shri Binay Kumar Sinha O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 8 was placed at Sl. No 13 and Shri Sanjay Kumar Jha was placed at Sl. No 22. The said seniority list was prepared on the basis of seniority in feeder cadre subject to the recommendation of the DPC dated 17.09.2019 and 02.11.2021, and assuming the charge of Assistant commissioner on regular basis. Thereafter, vide letter dated 01.06.2022, the final seniority list of the Assistant Commissioner's (as on 01.04.2022) was circulated by the authorities inviting objections to the same if any. Thereafter, the final seniority list was circulated by the Assistant Commissioner on 13.01.2023. It is relevant to state herein that the applicant had made a representation on 09.06.2022 requesting to consider his seniority from the date his junior were promoted to Assistant Commissioner with all consequential benefits. However, vide order dated 13.01.2023, it was informed that - "Therefore, the request of Shri Sanjay Kumar Jha, Assistant Commissioner, NVS, RO Shillong to consider his seniority from the date his juniors who were promoted with all consequential benefits cannot be considered. You are requested to kindly inform him accordingly."
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7. Thereafter, it was only on 26.05.2023 that the applicant submitted a representation to the authorities, which was duly forwarded to the Head Quarters by the respondent no. 4 on 29.05.2023, for consideration of his seniority above the respondent's no. 5 & 6 of the instant O.A. However, such request/representation was denied vide letter dated 07.11.2023 as 'time-barred'.
8. Private respondent No. 5 filed short counter reply and states that he was promoted on the post of Assistant Commissioner vide order dated 17.3.2020 consequent to DPC held on 17.9.2019 and on the said date since the Departmental proceeding in respect of charge memorandum dated 22.11.2019 was pending against the Applicant, hence, even if, there was no sealed cover proceeding during DPC, still the case of the Applicant would be considered to be in deemed sealed cover, in view of paragraph 7 of DOP&T Circular No 22011/4/91 (Estt(A) dated 14th Sept 1992. The disciplinary proceeding against the Applicant culminated in punishment of censure vide order dated 19.7.2021 Hence, in no way; the applicant could have O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 10 got promotion in the post of Assistant Commissioner prior to 19.7.2021. In view of this, the claim of the applicant to be senior to Respondent No.5 in seniority list dated 1.6.2022 is without any basis. As per private respondent No. 5, selection in respect of DPC held on 17.9.2019 has attained finality and promotions have been made according to the recommendations of the DPC. The Applicant has not challenged the selection in consequence to DPC dated 17.09.2019. Hence, relief for inclusion of applicant's name above private respondent No. 5 is not legally tenable and prays to dismiss the instant OA.
9. Private respondent No. 6 filed short counter reply and adopted the statements made by the private respondent No. 5 by stating that selection in respect of DPC held on 17.09.2019 has attained finality and promotions were made according to the recommendations of the DPC.
10. Against the written statement of respondent Nos. 2, 3 & 4, applicant filed rejoinder and reiterates that on the date of DPC no disciplinary proceeding was initiated and or pending against the applicant and as such adoption of sealed cover procedure by the DPC on contemplated O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 11 disciplinary proceeding is bad which cannot meet the scrutiny of law. The procedure adopted by DPC is contrary to the Office Memorandum No. 22011/4/91-Estt (A) dated 14.09.1992 issued by DoPT, Government of India wherein it is clearly provided that sealed cover procedure is to be adopted if (i) A Government Servant is under suspension, (ii) Government Servant in respect of whom charge sheet has been issued and disciplinary proceeding is pending, (iii) Government Servant in respect of whom prosecution for criminal charge is pending. Since none of the situations prevailed against the applicant at the time of DPC, the procedure adopted by DPC is against the law and the OM governing the field.
11. We have heard Shri S. Chakraborty, learned counsel for the applicant and Ms. R.S. Choudhury, learned NVS standing counsel for respondent Nos. 2 to 4 and gone through the records.
12. It is noted that a Departmental Promotion Committee held a meeting on 17.09.2019 to consider the cases of officers, who are posted in the cadre of Principal for O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 12 promotion to the cadre of Assistant Commissioner. As per the records, on the date of DPC meeting, the applicant was eligible for promotion to the cadre of Assistant Commissioner. However, his name was not considered for promotion to the cadre of Assistant Commissioner and his juniors were recommended for promotion. After a gap of two months, a Memorandum of Charge sheet dated 22.11.2019 was issued to the applicant proposing to hold a departmental inquiry.
13. It is admitted position by the respondents that process was initiated before the DPC but the Charge sheet was issued to the applicant after gap of two months approximately. It is a settled law as per ratio laid down by the Hon'ble Apex Court in the case of Union of India and Ors. Vs. Doly Loyi, Civil Appeal No (S). 8387 of 2013 as well as Union of India v. K.V. Jankiraman, reported in 1991 AIR 2010 wherein it is stated that - at the time of promotion, if there is no charges and no FIR, promotion cannot be denied to the official.
14. The Hon'ble Supreme Court while dealing the case of similar issue in the case of Union of India and Ors.
O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 13 Vs. Doly Loyi, Civil Appeal No (S). 8387 of 2013 by taking into account the case of Union of India v. K.V. Jankiraman, reported in 1991 AIR 2010, held that sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued. The relevant extract was also reproduced 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."
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15. At this stage, it is pertinent to note that the Ministry of Personnel, Government of India vide OM dated 2nd November, 2012 issued certain clarifications regarding the stage when prosecution for criminal charge can be said to be pending, keeping in view the dicta laid down in K.V. Jankiraman (supra). Para Nos. 6 and 8 of OM dated 2nd November, 2012 states as under:
"6. When a government servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in departmental proceedings and or prosecution of criminal by penal/conviction exoneration/acquittal. During the stage of investigation prior to issue of charge-sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued or the officer is placed under suspension. The pendency of preliminary investigation prior to that stage is not adopt the sealed cover procedure."
16. In case, Charge sheet is supplied to the official in departmental inquiry and criminal charges have been framed, sealed cover procedure should be adopted in such type of cases. Here, it is a case where neither Charge sheet was given in the departmental enquiry nor any Charges were framed and no FIR was pending against the O.A. No/187/2023 PRASANNA Digitally PRASANNA signed by BASUMATARYBASUMATARY 15 applicant. However, sealed cover procedure was adopted in the case of present applicant, which in our opinion, is not tenable in the eye of law.
17. In view of the foregoing discussions, we set aside and quash the impugned orders dated 19.07.2021, 22.11.2021 and 01.06.2022 and direct the respondents to hold a review DPC and grant promotion to the applicant to the cadre of Assistant Commissioner from the date when his juniors were promoted to the cadre of Assistant Commissioner, with all consequential benefits as per Rules, within a period of three months from the date of receipt of copy of this Order.
18. Accordingly, O.A. stands disposed of.
19. Pending M.A., if any, also stands disposed of.
20. No order as to costs.
(SANJIV KUMAR) (RAJINDER SINGH DOGRA)
MEMBER (A) MEMBER (J)
PB
O.A. No/187/2023
PRASANNA Digitally
PRASANNA
signed by
BASUMATARYBASUMATARY