Central Administrative Tribunal - Delhi
Deb Singh Bhakuni (Sr. A.O) vs Union Public Service Commission on 7 April, 2010
Central Administrative Tribunal Principal Bench OA No.3448/2009 New Delhi, this the 7th day of April, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Deb Singh Bhakuni (Sr. A.O) S/o Sh. T. S. Bhakuni R/o 45, Goodwill Apartments, Sector 13, Rohini, Delhi 110 082. . Applicant. (By Advocate : Sh. Ajesh Luthra) Versus 1. Union Public Service Commission Through its Chairman Dholpur House, Shahjahan Road, New Delhi. 2. GNCT of Delhi & Ors. Through Chief Secretary, Delhi Secretariat, Players Building, I. P. Estate, New Delhi. 3. The Principal Secretary (Finance) GNCT of Delhi 4th Level, Delhi Secretariat, Players Building, I.P. Estate, New Delhi. Respondents. (By Advocate : Sh. Padma Kumar S.) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Dev Singh Bhakuni presently working as Senior Accounts Officer in Government of NCTD is aggrieved by the action of the Respondents in denying him the promotion to the post of Deputy Controller of Accounts (DCA in short). He has sought the following relief in this OA under Section 19 of the Administrative Tribunals Act, 1985 :-
(a) declare that the act of respondents in adopting seal cover procedure in the regular promotion case of the applicant as illegal and
(b) consequentially, direct the respondents to open the seal cover and act upon the recommendations and promote the applicant w.e.f. the date his immediate junior has been promoted on regular basis with all consequential benefits and applicant w.e.f. the date his immediate junior has been promoted on regular basis with all consequential benefits and
(c) to direct the respondents to convene a review screening committee, as well, to consider the ad hoc promotion of the applicant w.e.f. the date his juniors were promoted on ad hoc basis with all consequential benefits and more specifically monetary benefits.
(d) award cost of the proceedings
(e) any other order/direction while this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
2. Brief facts of the case on which the Applicants above reliefs rest, would reveal that the Applicant was appointed as Junior Accounts Officer in Delhi Administration Accounts Service in Grade-I on 23.3.1987 and was promoted on regular basis to the post of Senior Accounts Officer (Grade-B Gazetted) on 9.6.1992. It is the case of the Applicant that one FIR No.1/2006 dated 2.1.2006 (Annexure-A7) of PS, AC Branch Delhi under Section 13 of the Prevention of Corruption (POC) Act read with Section 409, 420 and 120-B of Indian Penal Code (IPC) was registered in which the Applicant is named as an accused. The case is still under investigation and it is averred that the Applicant has been cooperating with the investigating agency and has not been arrested for the said case nor he has been charged by the Trial Court so far. He was suspended due to the said FIR on 6.3.2006 which was revoked on 23.11.2007 (Page-36). In the meantime, vide order dated 4.5.2007 (Annexure-A3), 8 Sr. AOs including some juniors of the Applicant were promoted on ad hoc basis to the post of Deputy Controller of Accounts and subsequently they have been promoted on regular basis. It is averred that though his suspension was revoked on 23.11.2007 and the regular DPC was held in UPSC, his case was considered and put in sealed cover, whereas, the Applicants juniors were promoted as Deputy Controller of Accounts on regular basis. Since the Applicant was ignored for the said promotion, he submitted a representation on 27.03.2008 stating that since no charges were framed against him either in the criminal case or in any departmental proceedings and all the more when the Applicants juniors were promoted vide order dated 18.06.2008 (Annexure-A5), Applicants non promotion was unjustified. As the Applicants representation for promotion was pending with the Respondents, and no response was forthcoming from the Respondents, he moved OA No.2800/2008 in this Tribunal which was decided on 24.12.2008 with the directions to the Chief Secretary, New Delhi (the second Respondent in that OA) to deal with the representation dated 27.03.2008 in accordance with law as expeditiously as possible and preferably within a period of two months from the date of receipt of copy of the said order. Consequently, the Government of NCT of Delhi considered Applicants representation dated 27.03.2008 and subsequent representation dated 12.01.2009, and inter alia informed the Applicant that the Departmental Promotion Committee meeting was held on 15.05.2008 at the Union Public Service Commission (UPSC) for considering the cases including the Applicants case for regular appointment to the post of Deputy Controller of Accounts and recommendation in respect of the Applicant was kept in the sealed cover. While communicating the said decision to the Applicant, the Respondent No.2 relied on the Government instructions in Para 2 of the Government of India DOP&T OM No.22011/4/91/Estt.(A) dated 14.09.1992. This OM envisaged that the cases of Government servant to whom sealed cover procedure would apply come in 3 categories namely; (i) Government servant under suspension; (ii) Government servant in respect of whom charge sheet has been issued and the disciplinary proceedings are pending and (iii) Government servant in respect of whom prosecution of criminal charge is pending. Further, the Respondent No.2 referring to Para 5 of the said OM, informed the Applicant that in case of criminal/disciplinary case pending even after expiry of 2 years from the date of the meeting of the DPC, which kept its finding in respect of the Government servant in a sealed cover, in such a situation only the Appointing Authority can review the case of Government servant, provided he was not under suspension. To consider the desirability of giving him promotion, keeping in mind his suspension, the Respondent-Government of NCTD has rejected the representation of the Applicant stating that his case for regular promotion has already been kept in the sealed cover on the recommendation of the DPC held on 15.05.2008 and the two years period has not elapsed from the said date. Therefore, his case could not be considered, which was conveyed to him vide the impugned letter dated 3.2.2009 (Page 13). Further, the Respondents referring to the DOPT OM dated 14.9.1992 and another OM dated 25.10.2004 informed the Applicant vide impugned letter dated 20.10.2009 (Page-14) that in the matter of grave charges of corruption/dereliction of duty etc., promotion would not be considered and his case for promotion would be continued in sealed cover. Being aggrieved by this order and taking exception to the said sealed cover procedure adopted by the Respondent and terming the same action of the Respondents as illegal in view of the extant government instructions and judicial precedents, the Applicant has visited this Tribunal for the second time.
3. On the facts of the case, as stated within, Shri Ajesh Luthra, learned Counsel representing the Applicant, very strongly puts forward the facts that the Respondents have adopted the sealed cover procedure in an illegal manner and even after the said illegality was brought to their notice, the impugned orders were passed on 3.2.2009 and 20.10.2009 rejecting the representation of the Applicant. He urged that on the date when the DPC was held in the UPSC no charge sheet was framed against him, less to speak that the charge sheets were pending at that point of time. He brought to our notice that the Applicant was placed under suspension on 6.3.2006 which was revoked on 23.11.2007. On 04.05.2007, ad hoc promotion to the post of Deputy Controller of Accounts took place whereby the juniors of the Applicant were promoted. Subsequently, even the regular DPC was held in which the recommendation on the Applicant was put in the sealed cover. Referring to the Counter affidavit filed on behalf of the UPSC, he submitted that the suspension of the Applicant having been revoked on 23.11.2007 and the same having not been brought to the notice of the UPSC at the time of considering the Applicants case in the DPC meeting held on 15.5.2008 for promotion to the post of Deputy Controller of Accounts, the DPC was misguided, as a result of which, the recommendation on the Applicant was put in sealed cover. Citing the DOP&T OM dated 14.09.1992, which is an offshoot of the law laid down in the judgment of Honble Supreme Court in Union of India Versus K. V. Jankiraman [JT 1991 (3) SC 527] and later on reiterated in Union of India and Others versus Sangram Keshari Nayak [2008 (1) AISLJ 84], and relying on the judgment of this Tribunal in the case of B. S. Bola, IPS Versus Union of India [OA No.1919/2008 decided on 11.08.2009]; and other judicial pronouncements, Shri Luthra urged that the sealed cover procedure adopted in case of the Applicant was against the extant government instructions and judicial pronouncements. He, therefore, submitted that the Respondents should be directed to open the sealed cover in order to promote the Applicant.
4. Consequent to the notice issued to the Respondents, they have put in their appearance and Respondent Nos.2&3 have filed their counter affidavit on 22.01.2010 and the Respondent-UPSC filed its reply affidavit on 8.02.2010. Subsequently, the Applicant has filed his rejoinder on 4.3.2010 to the counter of Respondent Nos.1,2 & 3.
5. Shri Padma Kumar S., learned Counsel representing Respondent Nos.2&3 and Ms. Alka Sharma, learned Counsel representing UPSC very vehemently opposed the contentions raised by Shri Ajesh Luthra. Citing the background of the case, it was contended that the name of the Applicant was considered by the UPSC for regular promotion to the post of Deputy Controller of Accounts in its meeting held on 15.05.2008 and the recommendation of the DPC in his case was kept under sealed cover in view of the fact that the Applicant was suspended in a case registered by the Anti Corruption Bureau of Government of NCT of Delhi for embezzlement of government money to the tune of Rs.31,08,996/-. A case against the Applicant under Prevention of Corruption Act and IPC was registered on 2.1.2006. The Directorate of Vigilance in its observation conveyed that though charge sheet by the ACB under CCS (CCA) Rules had not been issued, and the ACP while registering the case against the Applicant had also not filed the charge sheet in the Trial Court but the misconduct highlighted in the special Audit Report of the Directorate of Audit was so grave that the Applicant could not have been promoted by the DPC. It was also averred by the Respondents that Directorate of Vigilance vide its letter dated 5.11.2007 suggested that the Applicant should not be posted in office which had the custody of the documents required in the investigation and though the Applicants suspension was revoked on 23.11.2007, he was not promoted either on ad hoc basis or on regular basis in view of the seriousness of the pending case against him.
6. On behalf of the Respondent-UPSC, Ms. Alka Sharma submits that UPSC holds Departmental Promotion Committee strictly in accordance with the instructions issued by the Government and takes into account the essential inputs, such as, Seniority List, Annual Confidential Reports, Integrity Certificate, Vigilance Clearance of Feeder Category Officers and the like. In case of the promotion to the post of Deputy Controller of Accounts the vacancies for the years 2005-06, 2006-07 and 2007-08 was received by the UPSC in January, 2008. The Finance Department of Government of NCTD withheld the vigilance clearance in respect of 3 officers including that of the Applicant as at that point of time the Applicant was reported to have been placed under suspension. The meeting of the DPC was held on 15.05.2008 and for the vacancies for the year 2006-07 and 2007-08 the case of the Applicant was considered and the DPC kept its recommendations in respect of the Applicant under sealed cover as per the DOP&T OM dated 14.09.1992.
7. It is stated by the Respondent-UPSC that when the DPC met on 15.5.2008 to consider the suitability of eligible officers for promotion to the post of Deputy Controller of Accounts, the Applicants case was kept under sealed cover as the Respondent-Government of NCTD reported to the DPC that the Applicant was placed under suspension since 6.3.2006. There was no communication from the Department concerned of the Respondent-Government of NCTD at any stage to the UPSC that the suspension of the Applicant was revoked w.e.f. 23.11.2007. The Respondent-UPSC stated in the counter reply that vide letter dated 1.6.2009 (Annexure R 1/2), the Government of NCTD requested the UPSC to advise as to whether the Applicants case could be considered for the post of Deputy Controller of Accounts and whether the sealed cover in his case should be opened. The UPSC wrote back vide its letter dated 24.6.2009 (Annexure R-1/3) requesting Respondent No.2 to inform as to why the fact of revocation of suspension was not brought to the notice of DPC and requested to examine in the light of DOPT OM dated 14.9.1992 and submit a detailed review DPC proposal along with all the supporting documents for consideration of the Commission. Subsequently, there has been correspondence between UPSC and the Government of NCTD with regard to the procedure to be adopted for the sealed cover to be opened or not? This is the present impasse that has been continuing. The UPSC has been advising the Respondent-Government of NCTD to follow the procedures prescribed by the DOPT and if necessary to consult the DOPT in that regard. However, the Government of NCTD has not sent any response to the UPSC.
8. Having heard the rival contentions with the assistance of the Counsel, we examined the records of the case and the pleadings as well. We have very carefully considered the contentions of the parties and referred to Government instructions and the judicial pronouncements.
9. At this stage, for the consideration of this OA by us it is relevant to scan through the Government instructions over a period of time. Due to the judicial pronouncements mainly in Janakiraman case (supra), the government guidelines in the subject has undergone change and come in tune with the law and ratio laid by the Honble Apex Court. It is not disputed that when the DPC met and decided to put its recommendations concerning the Applicant in the sealed cover, criminal/departmental charges were not framed against him, nor he was under suspension. Hence the Sealed Cover Procedure adopted was not in accordance with the extant Government instructions. The earliest Government order was issued in Office Memo No. 22011 /2/ 86-Estt. (A) dated the 12th January, 1988 by the DOPT. The Para 2 of the OM reads as follows :-
"Cases where 'Sealed Cover Procedure applicable :- At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee :
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings.
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise."
10. The next order relevant in the subject is Office Memorandum No. 22011/91-Estt. (A) dated 31-7-1991 which has been issued by Government of India wherein the restriction imposed as per clause (iv) was deleted from the second paragraph of the "Sealed Cover Procedure". However, three counts of clarifications have been made by the Government of India through the same O.M. They read as follows:-:
"It is further clarified that :-
(i) All cases kept in sealed cover on date of this O.M. on account of conditions obtainable in para 2(iv) of the O.M. dated 12-1-1988 will be opened. If the official had been found fit and recommended by DPC, he will be notionally promoted, from the date his immediate junior had been promoted. The pay of the higher post would of course, be admissible only on assumption of actual charge in view of provisions of FR 17(1). (Since only officiating arrangements could be made against the vacancies available because of cases of senior officials being in sealed cover, there may not be any difficulty in terminating some officiating arrangements if necessary and giving promotion in such cases).
(ii) If any case is in a sealed cover on account of any of the other conditions mentioned in para 2(I) to 2(iii) of the O.M. dated 12-1-88, the case will continue to be in the sealed cover.
(iii) On opening of the sealed cover because of deletion of para 2(iv) if an officer is found to have been recommended as 'unfit by the DPC no further action would be necessary."
11. Procedure to be followed by DPC in respect of Government servants under cloud is given in the Dept. of Per.&Trg., O.M. No.22011/4/91-Estt.(A), dated the 14th September, 1992 and the relevant Para of the said OM envisages as follows :-
2. At the time of consideration of the cases of Government servants for promotion details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee :-
Government servants under suspension;
Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and Government servants in respect of whom prosecution for a criminal charge is pending.
12. The DOPT has issued certain clarification in the subject vide its OM No.22012/1/1999-Estt(D) dated 25.10.2004. We take the extract of the relevant part of the OM as given at Pages 861-862 in the Swamys Complete Manual on Establishment and Administration (10th Edition-2006) :
Cases of persons whose conduct is under investigation or against whom a charge-sheet is pending-clarification regarding consideration for promotion.- The undersigned is directed to refer to the Department of Personnel and Training Office Memorandum No.22011/4/91-Estt.A, dated 14.9.1992 which has been issued pursuant to the judgment of the Honble Supreme Court in the case of Union of India v. K. V. Janakiraman, etc. [AIR 191 SC 2010], and is in supersession of all previous instructions on the subject, and to say that Para 2.1 of the said Office Memorandum provides that the DPC shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned in Para 2 of the Office Memorandum, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. Therefore, it is made clear that only a bare statement, that case of an employee in the zone of consideration/extended zone of consideration is covered by any of the three situations indicated in Para.2 of the said Office Memorandum is to be furnished to the DPC to enable it to place its recommendations in the sealed cover. No other details about the pending inquiry or the nature of charges, etc., are to be furnished to the DPC lest these details weigh with the DPC in making its recommendations, which are to be placed in the sealed cover.
2. Considerable doubts also persist about the furnishing of the vigilance clearance and integrity certificate to the DPC. It is clarified that the DPC is required to consider the cases of all persons who are otherwise eligble in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, case of an employee in the zone of consideration is covered by any of the three situations, only this fact is to be furnished to the DPC so that the recommendations could be placed in sealed cover. Where none of the three situations has arisen, a simple vigilance clearance would need to be furnished. Vigilance clearance/ status would have not other significance and would not be a factor in deciding the fitness of the officer for promotion on merit.
3. It is also clarified that there is no requirement of furnishing a separate integrity certificate to the DPC. In terms of the judgment of the Honble Suprme Court in the case of Union of India v. K. V. Janakiraman, etc. {AIR 1991 SC 2010], no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge-sheet etc. If in the matter of corruption/dereliction of duty, etc., there is a serious complaint and the matter is still under investigation of CBI or otherwise, the Government is within its right to suspend the official. In that case, the Officers case for promotion would automatically be required to be placed in the sealed cover.
13. We now advert to the well settled legal position in the subject. The Honourable Apex Court in K. V. Jankiraman case (supra) dealt inter alia the question what in service jurisprudence is known as "sealed cover procedure". and more specifically the issue relating to what is the date from which it can be said that disciplinary/ criminal proceedings are pending against an employee? The "sealed cover procedure" is adopted when an employee is due for promotion but disciplinary / criminal proceedings are pending against him at the relevant time and hence the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over and the concerned official is exonerated of the charges. The relevant paragraph of the said judgment is extracted below :-
"6. 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 would 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. 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:
"(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 only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
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.
We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal."
14. In Sangram Kesari Nayak case (supra), reiterating the law laid down in K. V. Janakiraman case (supra), the Honble Apex Court observed as follows :
12. Whereas Paragraph 6 of the said Circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in paragraph 2 thereof arise after the recommendations of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter alia when one or the other conditions mentioned in Paragraph 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge sheet had been issued or in other words, a disciplinary proceeding was pending. Admittedly, a charge sheet was issued as against him only on 24.9.1999.
15. A case where sealed cover procedure was followed since a CBI inquiry was pending, considered and adjudicated by this Tribunal in B. S. Bola case (supra) where one of us (Honble Mr. Justice V. K. Bali) authored the judgement and the same on challenge was upheld by the Honble High Court of Delhi. In the said case a CBI enquiry was pending against Shri B. S. Bola, an IPS Officer, and no charges were framed. Relying on the decision of this Tribunal in Union of India Versus Om Prakash [OA No.1185/2007 decided on 3.6.2008], the DOPT OM dated 12.1.1988 and OM dated 14.9.1992 was analysed and it was held that the promotion could be denied and sealed cover procedure followed if the case fulfilled the circumstances mentioned in the DOPT OM dated 14.9.1992. In the said case, since the provisions of OM dated 14.9.1992 were not fulfilled the Tribunal directed the Respondents to open the sealed cover and grant promotion if Shri Bola was recommended by DPC for promotion. We rely on the judgment in B. S. Bola case (supra) for adjudicating the present OA.
16. In the background of the Government instructions and judicial precedents, we find from the facts in this OA that it is an admitted position that the Applicants suspension was revoked on 23.11.2007 whereas the promotion of his juniors to the post of Deputy Controller of Accounts on ad hoc basis took place on 4.5.2007 and on regular basis the promotion took place on 18.06.2008. On the date when the juniors of the Applicant were promoted on ad hoc basis (4.5.2007), the Applicant was continuing under suspension. Therefore, as per the extant Government instructions in DOPT OM dated 14.9.1992, the Applicant would not be entitled for ad hoc promotion. But, when the DPC met to consider regular promotion, the Applicants suspension was already revoked. This fact, it emerges from the averments of the UPSC, has not been brought to the notice of DPC. On the contrary, the Respondent No.2 reported to the UPSC that the Applicant was continuing under suspension w.e.f. 6.3.2006. This wrong information was the basis for the DPC to have kept the Applicants case under sealed cover. Now that there is no dispute about the revocation of suspension on 23.11.2007 and no charge either in departmental disciplinary proceedings or in the criminal case was framed against him in the Trial Court on 18.6.2008, the Applicant was entitled to be considered for promotion by the DPC. What was pending at that point of time was an FIR that has been filed against him under the appropriate sections of the Prevention of Corruption Act and IPC. It is admitted fact that the concerned Trial Court has not framed charges against the Applicant, nor there has been charges under any disciplinary proceedings against the Applicant. The Respondents considered it appropriate to revoke Applicants suspension. Even if the allegations are very grave and serious, the Respondents chose to revoke suspension. Thus, the Government instructions and judicial precedents would come to play. We are, therefore, of the firm view that the matter on the facts of the case as narrated above is covered in favour of the Applicant by a decision of this Tribunal in OA No.1185/2007 decided on 3.6.2008 in the matter of Om Prakash Versus Union of India. Not only on the facts but also on law involved in the present case are similar to that of the Om Prakashs case (supra) and also the magnitude of alleged offence committed by the Applicant seems to be also similar in nature. This judgment of the Tribunal has reached its finality by getting affirmed in a writ filed by the Respondents in the said case before the Honble High Court of Delhi in WP (C) No.7810/2008 decided on 27.11.2008. We may mention here that the case of the Applicant for adopting the sealed cover procedure by the DPC which held on 15.05.2008 at the UPSC has been done on the basis of wrong information that the Applicants suspension was still continuing whereas the fact is different from what was the presumption. That means the Applicants suspension was revoked on 23.11.2007 about 6 months before the DPC meeting. This fact has not been brought to the notice of the DPC held in UPSC, which may be due to inadvertent mistake but has prejudiced the Applicant to such an extent that his juniors had been promoted leaving him in an embarrassed position. Be that as it may, adoption of the sealed cover procedure as per the extant guidelines of the DOPT dated 14.09.1992 would not be admissible in the case of the Applicant.
17. Taking into account the facts and circumstances of the case while allowing this Application we direct the Respondent-Government of NCTD to open the sealed cover and if he is found fit as per the recommendation of the DPC, the Applicant shall be promoted with effect from the date on which his juniors were promoted on regular basis. We also direct that in case of his promotion, the consequential benefits like seniority shall also accrue to the Applicant. However, with regard to the pay and allowances, the same may be fixed notionally on and from the date his juniors were promoted and the actual pay in the rank of Deputy Controller of Accounts shall be fixed and paid from the date he assumes charge.
18. The OA is allowed in terms of our directions within, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
/pj/