S. D. SHAH, J. ( 1 ) THIS application is filed by original petitioner in SCA No. 8079/92 for direction to the respondents to consider his case for promotion to the post of Supdt. Engineer from the post of Excutive Engineer by ignoring pendency of departmental proceedings against him. It may be stated that in the main petition filed by the petitioner he has infer alia prayed for identical relief seeking directions to the respondents to consider his case for promotion to the post of E. E. with effect from 30-7-1990 or from the date on which his immediate junior was promoted. At that time he also sought interim relief directing respondents to issue him no objection certificate for obtaining passport to go to USA. ( 2 ) IT appears that R. A. Mehta J. by order dated 2 granted interim relief directing the respondents to issue No Objection Certificate to the petitioner so that he can get immigration visa. The department was aggrieved by such order and preferred LPA No. 8/93 which was decided by judgment and order dated 27- 1-1993. Excepting imposing condition of furnishing security of immovable property to the tune of Rs. 1 lac directions issued by the learned single Judge were not interfered with and the LPA was rejected. ( 3 ) BY this application the petitioner has prayed for further direction directing the respondents to consider his case for promotion to the post of Supdt. Engineer and this prayer is required to be considered in the following facts situation. ( 4 ) THE petitioner is at present working as Executive Engineer and for the incident which has taken place in the year 1983 charge-sheet dated 30 was served on him. To the said charge-sheet on 30-9-1989 he has filed his reply. On 14-6-1990 the Government appointed enquiry officer to enquire into the charges levelled against the petitioner. Oral as well as documentary evidence was recorded and the enquiry officer completed the enquiry on 1st July 1992. The petitioner has submitted his final reply before the enquiry officer on 21st July 1992. It appears that the enquiry officer has submitted his report on 30-11- 1992 and as per the report of the enquiry officer he has fully exonerated the petitioner of the charges levelled against him. The petitioner has submitted his final reply before the enquiry officer on 21st July 1992. It appears that the enquiry officer has submitted his report on 30-11- 1992 and as per the report of the enquiry officer he has fully exonerated the petitioner of the charges levelled against him. The disciplinary authority has however not agreed with the enquiry officer and has in exercise of powers conferred upon him by recording reasons for disagreeing with the findings reached by the enquiry officer issued show-cause notice to the petitioner on 30-12-1993 calling for his explanation as to why he should not be held guilty of the charges levelled against him. The petitioner has replied to the said show-cause notice and till date no action is taken on such notice issued by the disciplinary authority. ( 5 ) IT is required to be noted that the case of the petitioner was considered for promotion to the post of Supdt. Engineer by the Department Promotion Committee in its meeting held on 1 Since the petitioner was then facing depart mental enquiry the recommendation of the DPC was kept in a sealed cover in accordance with GR dated 23-9-1981. ( 6 ) ). The departmental enquiry against the petitioner was not over within a period of two years thereafter and therefore consistent with the GR his case was once again considered by the DPC for ad hoc promotion. The DPC did not clear the petitioner for ad hoc promotion on the ground that the charges levelled against the petitioner were very grave. According to DPC the charges levelled against the petitioner were of serious irregularities and therefore even ad hoc promotion was denied to the petitioner ( 7 ) ). At this stage it is required to be noted that exact date on which the DPC considered the case of the petitioner for adhoc promotion is not stated to this Court. However it earlier meeting is of December 1989 it shall have to be a assumed that the second meeting must have been after December 1991 It is pertinent to note that as back as November 1992 the report of the enquiry officer was already received by the Government as per which the petitioner was exonerated of the charges levelled against him. Question which is now to raised for consideration of this Court is as to whether when a Cl. Question which is now to raised for consideration of this Court is as to whether when a Cl. I officer is streered clear of the charges levelled against him by the enquiry officer and when the disciplinary authority disagrees with said findings reached by the enquiry officer whether directions could be issued to the respondents to consider the case of the petitioner for ad hoc promotion? ( 8 ) ). Mr. Amit Panchal. learned AGP appearing for respondent-Gvernment has very strenuously urged before this Court that consistent with the sealed cover procedure evolved by the State Government which is approved by the Supreme Court so long as the disciplinary proceedings are not concluded in favour on petitioner he has no right of being promoted to the higher post. He submits that once the charges are levelled against the petitioner he becomes an officer under cloud and so long as the cloud is not cleared by his total exoneration at the conclusion of enquiry he cannot as a matter of right claim promotion. He has in this connection invited the attention of this Court to a large number of authorities to which reference shall have to he made at this stage. In the case of Delhi Development Authority v. H. C. Khurana reported in 1993 (2) JT 695 the Supreme Court was called upon to decide the question of applicability of sealed cover procedure in the context when only decision was taken to initiate disciplinary proceedings against the employee prior to meeting of DPC. Charge-sheet was issued but it was not served on the employee before the meeting of DPC. The Supreme Court took the view that issuance of chargesheet in the context of decision taken to initiate disciplinary proceedings must mark preparing of charge-sheert and taking of necessary action to dispose of the charge-sheet. Actual service of charge-sheet on the employee was not required. In this fact situation the Supreme Court made certain observations in para 8 of its judgment on which much reliance is placed which are as under. These words clearly indicate that the sealed cover procedure was applicable in cases where the disciplinary proceedings are pending in respect of the Government servant; or decision has been taken to initiate disciplinary proceedings. Thus on a decision being taken to initiate disciplinary proceedings the guidelines attract the sealed cover procedure. The reason is obvious. These words clearly indicate that the sealed cover procedure was applicable in cases where the disciplinary proceedings are pending in respect of the Government servant; or decision has been taken to initiate disciplinary proceedings. Thus on a decision being taken to initiate disciplinary proceedings the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a govt. servant his promotion even if he is found otherwise suitable would be incongruous because a Government servant under such a cloud should not he promoted till he is cleared of the allegations against him into which a (sic.) enquiry has to be made according to the decision taken. In such a situation the correctness of allegation being dependent on the final outcome of the disciplinary proceedings it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings even though it would be improper to promote him if he found otherwise suitable unless exonerated. To reconcile these conflicting interests of the Government servant and public administration the only fair and just course is to consider his case for promotion and to determine if he is otherwise suitable for promotion and keep the result in abeyance in sealed cover to be implemented on conclusion of disciplinary proceedings and in the case he is exonerated therein to promote him with all consequential benefits if found otherwise suitable by the Selection Committee. On the other hand giving him promotion after taking the decision to initiate disciplinary proceedings would be incongruous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the scaled cover procedure in such cases to prevent the possibility of any injustice or arbitrariness. ( 9 ) ). It is clear that when the decision is taken to initiate disciplinary proceedings against a Government servant the procedure of sealed cover will be applicable and since such an officer is under cloud he cannot be ordinarily promoted till he is steered clear of allegations against him. At the same time since correctness of the charges levelled against him is yet to be decided at the enquiry he cannot be excluded at least from the right of being considered for promotion. At the same time since correctness of the charges levelled against him is yet to be decided at the enquiry he cannot be excluded at least from the right of being considered for promotion. That is the reason why the procedure of sealed cover is evolved so that an employee while undergoing department enquiry can still be subjected to a process of selection and recommendation made by the DPC may be kept in sealed cover. To this position of law no exception can be made and for better administration the rule shall have to be followed. ( 10 ) ). However it is required to be noted that under GR of 1981 the sealed cover procedure is evolved and by subsequent decision guidelines are laid down for the purpose of reconsideration of the case of an employee after expiry of period of two years. Thereby a right is conceded in favour of employee of being considered and offered ad hoc promotion to higher post when inquiry could not be concluded within a period of two years. DPC may consider an employee for ad hoc promotion in case where the disciplinary proceedings have continued for inordinately long period. It is well known that at times disciplinary proceedings continue for long period. If for such a long period an employee is to be denied a right of promotion simply on the ground that the disciplinary proceedings are pending against him it may work into untold hardship to such an employee and may also result into denying him a right of promotion to which he is otherwise entitled. With a view to answering such a fact situation the Government has provided a procedure where DPC is required to consider the case of an employee for ad hoc promotion pending disciplinary proceedings. In the present case such a procedure is followed and solely on the ground that charges levelled against the petitioner were of serious nature the petitioner was not considered for ad hoc promotion. ( 11 ) ). In the aforesaid fact situation question would definitely arise as to what will be the position when such an employee is fully exonerated of the charges levelled against him by the enquiry officer. Factually he is found to be not guilty of the charges levelled against him. ( 11 ) ). In the aforesaid fact situation question would definitely arise as to what will be the position when such an employee is fully exonerated of the charges levelled against him by the enquiry officer. Factually he is found to be not guilty of the charges levelled against him. I am conscious of the fact that findings of enquiry officer are not always bindings on the disciplinary authority and disciplinary authority has a purpose of right of an employee of at least getting consideration for ad hoc promotion is he not entitled to state clear of the charges levelled against him by the enquiry officer be should be considered as exonerated for the purpose of his ad hoc promotion. It is pertinent to note that after report of enquiry officer submitted as back as December 1992 the respondent-authority has taken period of 12 months for disagreeing with the findings reached by the enquiry officer. Even thereafter a notice is issued to which petitioner has already given reply and till date no decision is taken. Mr. Amit Panchal learned AGP has stated that if the court so directs decision can be taken within further period of two months. The question is : Is it for the court in such a fact situation to permit to the respondent to take leisurely course of deciding the disciplinary proceedings as and when it thinks fit or an employee if he is found fit by the DPC should be directed to be considered for ad hoc promotion? ( 12 ) MR. Amit Panchal learned AGP has also invited the attention of this Court to the decision of the Supreme Court in the case Union of India v. Kevalkumar reported in 1993 (2) JT 705 and he has relied upon the observations made in para 3 of the said judgment which are as under: it is obvious that when the competent authority takes the decision to initiate a disciplinary proceedings or steps are taken for launching a criminal. prosecution against the Government servant he cannot he given promotion unless exonerated even if the Government servant is recommended for promotion by the DPC being found suitable otherwise. prosecution against the Government servant he cannot he given promotion unless exonerated even if the Government servant is recommended for promotion by the DPC being found suitable otherwise. In a case like the present where the FIR was registered by the CBI and on the basis the decision has been taken by the competent authority to initiate disciplinary proceedings for position of major penalty on the respondent prior to the meeting of DPC the applicability of the sealed cover procedure cannot he doubted. The formulation of charges required for implementing the decision of the competent authority to initiate the disciplinary proceedings is satisfied in such case by the recording of the FIR by the CBI which records the allegations against the respondent and provides the basis for disciplinary proceedings. The requisite formulation of the charges in such a case is no longer nebulous being crystalised (sic.) in the FIR itself and therefore even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the DPC this fact alone cannot benefit the respondent. ( 13 ) THE aforesaid observations if closely read would mean that a person cannot be given promotion if disciplinary proceedings are initiated. He cannot be given promotion till he is exhonerated. However when an employee is exhonerated of the charges levelled against him by the enquiry officer and if disciplinary proceedings have not concluded can such an employee be not directed to be considered at least for adhoc promotion? In my opinion DPC denied even ad hoc promotion on the ground that the charges levelled against him were serious. At that time enquiry was not concluded. At that time no findings on the charges were reached. However when findings on the charges are already reached by the enquiry officer when the employee is exhonerated of said charges court is competent to direct the DPC to consider the case of the petitioner for ad hoc promotion. The only submission is that the disciplinary proceedings are not completed. I agree that the disciplinary proceedings; are not yet completed. However fact remains that as on date findings are reached holding that employee is not guilty of charges levelled against him. The only submission is that the disciplinary proceedings are not completed. I agree that the disciplinary proceedings; are not yet completed. However fact remains that as on date findings are reached holding that employee is not guilty of charges levelled against him. In that situation when petitioner is denied right of being considered for ad hoc promotion since 1989 on the ground of pendency of enquiry in my opinion appropriate direction could be issued and court is not powerless. ( 14 ) MR. Amit Panchal learned AGP has also invited my attention to the decision of the Supreme Court in the case of Saiyed Rizvi v. Union of India reported in 1993 Supple (2) (SCC) 575 and more particularly last head-note on page 578 which lays down that there is no right of promotion but there is right to be considered for promotion. I do not dispute the proposition of law. He has to next invited attention of this Court to the decision or the Supreme Court in the case of State of M. P. v. Srikant Chaphekar reported in 1992 (4) SCC 689 more particularly observations made in para of the judgment which reads as under: We are of the view that the tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment or the work and conduct of the official/officer concerned for a period of one year. The tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case the tribunal outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Dy. Director. It is not function of the tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate same and make recommendations based on such evaluation. This Court has repeatedly held that in a case where the Court/tribunal comes to conclusion that the person is not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law. It was not within the competence of the tribunal in the facts of the present case to have ordered deemed promotion of the respondent. It was not within the competence of the tribunal in the facts of the present case to have ordered deemed promotion of the respondent. ( 15 ) ). In fact I have not undertaken the exercise of assessing the service record of the employee. I have also not undertaken the exercise of verifying the performance of the employee nor do I intend to do that. Performance of employee for promotion can only be assessed by the DPC. It has assessed the petitioner but what are the recommendations of the DPC is not known to this Court. The only question is as to whether this Court can direct the Government to consider the case of the petitioner for ad hoc promotion post on the recommendations of DPC? If DPC has otherwise found the petitioner fit for promotion the right of ad hoc promotion at least should not be denied to him when enquiry has unfortunately lasted for a period of 5 years more so because he is exhonerated of the charges levelled against him by the enquiry officer. I am conscious of the fact that the disciplinary authority has disagreed with such findings but final decision is yet to be taken. In that view of the matter this decision also does not run counter to the course of action which I denied to follow. ( 16 ) IN view of the aforesaid I am of the opinion that this is a fit case where interim direction shall have to be issued and I direct as under: ( 17 ) ). The respondents are directed to open the sealed cover of the Departmental Promotion Committee and it the petitioner is found fit to offer him ad hoc promotion to the post of Supdt. Engineer within 6 weeks from today. Rule is made absolute according with no order as to costs. .