JUDGMENT 1. - The petitioner, who was working as Vaidya Gr. I in the Ayurved Department, as per seniority issued. on December 1, 1978, was senior to the respondents No. 2 to 6. The name of the petitioner appeared at S.No. 55, whereas the names of the respondents No. 2 to 6 appeared at S. Nos. 58, 59, 60, 62 and 70. As per the submission of the petitioner the Departmental Promotion Committee (hereinafter referred to as `the D.P.C.) had met for consideration for promotion to the posts of District Ayurved Officer against the vacancies of the years 1981-82, 1982-83, 1983-84 and 1984- 85 and after considering the name of the petitioner, his name has been kept in a sealed cover because of some so- called `contemplated' departmental enquiry against him. It is submitted by the petitioner that he is already holding the post of District Ayurved Officer since November 23, 1983 when his name was put up for consideration before the D.P.C. It is submitted by him that he was selected by the D.P.C. in September, 1984 and he was adjudged. suitable but the regular promotion was being denied to him on the ground of some contemplated enquiry and his name was kept in sealed cover time and again. The petitioner filed an appeal before the Rajasthan Civil Services Appellate Tribunal Rajasthan, Jaipur being Appeal No. 998 of 1984 which was decided against the petitioner on 17.12.1986 (Annex. 3). It is the case of the petitioner that the so-called contemplated enquiry was, as a matter of fact, not in existence. He was never issued any charge-sheet and until and unless any charge-sheet is issued to the petitioner, there is no initiation of the enquiry. It is contended by the petitioner that the enquiry starts from the stage of issuing the charge-sheet till its final conclusion. The petitioner further contends that he could not be deprived of his promotion on the allegation of some `contemplated' enquiry which may be in the mind of the competent authority but for which no overt action has been initiated i.e. no memo or charge-sheet has been issued to the petitioner. The petitioner further contends that he could not be deprived of his promotion on the allegation of some `contemplated' enquiry which may be in the mind of the competent authority but for which no overt action has been initiated i.e. no memo or charge-sheet has been issued to the petitioner. The petitioner relies on the instructions issued by the Government of Rajasthan vide Department Notificatioii No. F 10(1) Karmik/Ka-II/75-1 dated 5.3.1976 and certain other instructions issued on 18.9.1971, 1.4.1975 and 4.12.1975 for the proposition that the matters in regard to the promotion of a person against whom either there is order of suspension or departmental enquiry is pending were clarified. It is submitted that the instruction had clearly laid down that if any statement of allegation or charge-sheet has been issued under Rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (referred to hereinafter as `the Rules of 1958') only then the delinquent official could be denied promotion. The Appellate Tribunal vide Annex. 3 came to the conclusion that junior persons have been promoted on regular basis and the petitioner had been so persuaded. Relying on the circular dated 4.1.1997 the Appellate Tribunal had non- suited the petitioner on the ground that even though no enquiry has been started or charge-sheet has been issued and still if there is any contemplation of departmental enquiry, the sealed cover procedure can be adopted for the reason that ultimately the petitioner would be issued the charge-sheet under Rule 16 or 17 of the Rules of 1958 and proceeded with under the Rules of 1958. 2. A reply has been filed on behalf of the respondent No. I and it has been specifically averred that in the year 1983-84 a departmental enquiry was contemplated and, therefore, a recommendation was made to the D.P.C. to consider the name of the petitioner and keep his name in the sealed cover. It was admitted that the petitioner was asked to officiate on the promotional post by- giving him the charge of District Ayurved Officer in 1983 when the post of District Ayurved Officer was lying vacancy, on account of retirement of one Ram Gopal but he was paid the salary of his original post and was not paid the salary of the promoted post. It is further admitted that a number of posts of District Ayurved Officers are lying vacant but on account of non-meeting of the D.P.C. the promotions are not being made. It is admitted that the petitioner was being posted as District Ayurved Officer at number of places against the vacant posts but he was not regularly promoted and he was allowed to draw the pay of his substantive post of Vaidya Gr. I i.e., the original post. In the written-statement it has not where been mentioned that right from 1983 till the filing of the writ petition, for ignoring the name of the petitioner for the purpose of promotion, any charge-sheet was issued to the petitioner or not. 3. Because of the reason that the written-statement only mentions that some departmental enquiry was contemplated against the petitioner, it became necessary for issuance of a direction to the respondents to produce the record of the so-called contemplated enquiry. The spondents have produced on record a copy of the charge-sheet dated 7.10.1991 i.e. which seems to have been issued after about 5 years of the filing of the writ petition and even the department has not come up with any explanation as to what had happened after the issuance of the charge-sheet dated 7.10.1991. Admittedly the petitioner has since retired and he is no more in service. It is also admitted at the bar that except of issuance of charge-sheet on 7.10.1991 a photo copy of which is marked as Annex. C. I by the Court, no further action has been taken in this regard. 4. The only question which arises for consideration is whether there was any initiation of departmental proceedings against the petitioner in the year 1983-84 when the D.P.C. had kept the candidature of the petitioner in the sealed cover on the instructions of the employer to the effect that the employer is thinking to start some departmental enquiry against the petitioner. The D.P.C. had only acted on the communication of the competent authority in this respect without looking into the facts or the original record. The D.P.C. had only acted on the communication of the competent authority in this respect without looking into the facts or the original record. It is settled law that the departmental enquiry is said to he pending after issuance of the charge-sheet and admittedly in the present case the charge-sheet dated 7.10.1991 itself has been issued after 8 years of the consideration of the candidature of the petitioner by the D.P.C. when his name was kept in sealed cover and no further action has been taken by the department in the matter and during this period the petitioner has even superannuated from the service. There was no justification for ignoring the name of the petitioner on the imaginative ground of contemplated enquiry. There was no cogent ground for the respondents for keeping the name of the petitioner in the sealed cover when the petitioner was not even charge-sheeted and to wait for years together. The D.P.C. also did not verify the record to see whether any charge-sheet had been issued or not to the petitioner before relying on the communications sent by the respondents. 5. It has been held by the Hon'ble Supreme Court in Union of India etc. etc. v. K.V. Jankiraman etc. etc., ( AIR 1991 SC 2010 ) that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is initiated against the employee, it can be said that the departmental proceedings are 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. It was held as under : "It is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The scaled 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. The scaled 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. The plea that when there are serious allegations and it takes time to collect the 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., would not be tenable. 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 a 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 to resort to the sealed cover procedure. The authorities thus are not without a remedy. 6. The promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit there must be at the relevant time pending at the stage when charge-memo/ charge-sheet has already been issued to the employee." 7. Reliance has also been made on a Single Bench Judgment of this Court delivered in Summer Singh Bhandari v. State of Raj. & Ors. (199] (2) RLR 265) wherein the same circular dated 4.1.1977 was considered by the learned Single Judge and the clauses of the Government Circular dated 4.1.1977 itself were declared to be ultra vires to the powers of the Government under Rule 28-B of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and it was further held that the disciplinary proceedings are said to have been initiated against an employee only when a charge-sheet is issued to him and not before that. The Hon'ble Single Judge has observed as under : "A perusal of para 2 of this circular shows that the instructions contained in that circular are applicable not only in the case of a Government servant who is under suspension or against whom disciplinary proceedings either under rule 16 or 17 of the 1958 Rules have been initiated but also against whom disciplinary proceedings are proposed to be initiated. A reading of Rule 28-B(15) together with the circular dated 4.1.1977 unmistakably show that while Rule Making Authority has empowered the Government to issue instructions only for defiling with the cases of persons who may be under suspension or against departmental proceedings may be pending, the circular see to cover the cases of those persons against whom disciplinary proceedings may not be pending but are proposed to be initiated. A disciplinary proceeding can be said to have been initiated against an employee only when a charge-sheet is issued to him and not before that. Initiation of enquiry cannot take place till the issue of charge-sheet. It cannot be equated with contemplated enquiry or when a case where an enquiry is about to be initiated or proposed to be initiated. The phrase `about to be initiated' or `proposed to be initiated' both relate to the stage prior to actual intimation of the enquiry. When the Rule Making Authority has not empowered the Government to issue instructions for dealing with cases of persons against whom departmental proceedings are about to be initiated but only in respect of persons against whom departmental proceedings is in progress or is pending, the Government has, in my opinion, clearly acted beyond its authority in making a provision to deal with the cases of persons against whom proceedings are not pending but are about to be initiated. To that extent the circular dated 4.1.1977 is clearly ultra vires to the power of the Government under the aforesaid rule." 8. I fully agree with.the observations and findings of the learned Single Judge as has been held in Sumer Singh Bhandari's case (supra). 9. The net result of the above discussion is that the action of the respondents in ignoring the petitioner for promotion and keeping his name in the sealed cover was neither proper nor in accordance with law. I fully agree with.the observations and findings of the learned Single Judge as has been held in Sumer Singh Bhandari's case (supra). 9. The net result of the above discussion is that the action of the respondents in ignoring the petitioner for promotion and keeping his name in the sealed cover was neither proper nor in accordance with law. Even otherwise the sealed cover procedure should not be allowed to continue for years together on some contemplated enquiry for which the D.P.C. had no basis to come to such a conclusion except a letter from the competent authority. It would have been appropriate if the D.P.C. would have been apprised of the fact that no charge-sheet had been issued to the petitioner in the year 1983-84 when his name was being considered for promotion. 10. For the reasons mentioned above, the writ petition is to be allowed and a writ of mandamus is issued to the respondents to open the sealed cover and to confer all the consequential benefits of promotion as it has already been admitted by the respondents in para 4 of the written statement that the D.P.C. had adjudged him suitable for promotion in September, 1984 when his case was kept in sealed cover. Resultantly the order Annex. 3 passed by the Rajasthan Civil Services Appellate Tribunal Rajasthan, Jaipur is also set aside and a writ of mandamus is issued to the respondents to consider the petitioner to be promoted to the post of District Ayurved Officer from the date his immediate juniors were so promoted with all consequential benefits including pay etc. Even otherwise when, the petitioner had been working on the promotional post in his own pay scale and had been working on the promotional post, he was entitled to the regular pay scale of the District Ayurved Officer in the circumstances mentioned above. The compliance of the order shall be made within two months from the date of receipt of the certified copy of this order and the arrears, if any, shall also be paid to the petitioner within the stipulated period with interest at the rate of 12% per annum and in case the order is not implemented within the stipulated period the petitioner shall be entitled to enhanced rate of interest i.e. 18% per annum. 11. The writ petition is allowed as indicated above.Writ Petition Allowed. *******