1. Heard Mr. Kh. Chonjohn, learned counsel for the petitioner and also Mr. Ashang, learned Government advocate, Manipur. 2. Briefly stated, the fact of the case is that the petitioner, who was appointed as LDC in the year 1962, was promoted as Accounts Officer in the year 1996. The Manipur Finance Service Rules came into force with effect from 24.4.1998, on which date the Rule was published in the Manipur Extraordinary Gazette. In Schedule-1 of the Rules, three Grades are provided and they are as follows : - (i) Finance Service Grade-I; (ii) Finance Service Grade-II; and (iii) Finance Service Grade-Ill. The authorized permanent strength of the service is also indicated under the aforesaid Schedule. Accounts Officers/State Treasury Officers/Assistant Treasury Officer, etc., specified in Scheduled-I, are the posts under Grade-III of the Manipur Finance Service. 3. Rule 6 of the Manipur Finance Service provides for initial-appointment of persons to the service and according to this rule, consent is required from the incumbents holding posts equivalent to posts specified in the Schedule-I as Grade-III, before being appointed to the Manipur Finance Service. In order to implement the provisions of the aforesaid service rules, an exercise was undertaken by the authority seeking option/consent of the officers holding the posts equivalent to posts specified in Schedule-I and the petitioner, who was then holding the post of Accounts Officer in the Department of Commerce and Industries, Government of Manipur, along with others, opted for the Manipur Finance Service. Thereafter, a final seniority list of officers holding the posts equivalent to posts specified in Schedule-I of the Manipur Finance Service, was published by the Government on 2.1.1999 and in that, the name of the petitioner appeared at SI. No. 25. 4. By an order dated 31.3.1999 issued by the Government of Manipur, 28 officers from the seniority list mentioned above, including some junior to the petitioner, came to be appointed as Grade-III officers in the Manipur Finance Service by way of initial appointments to the service. The petitioner and some others were excluded from being absorbed/appointed on the ground that some vigilance proceeding was pending against them at the time of consideration for appointment to Manipur Finance Service Grade-III. The vigilance proceeding came to be cleared by the Director of Vigilance stating that the charges against the three officers including the petitioner, were not proved vide, Memorandum dated 28.8.1999. The vigilance proceeding came to be cleared by the Director of Vigilance stating that the charges against the three officers including the petitioner, were not proved vide, Memorandum dated 28.8.1999. It is submitted by the learned counsel for the petitioner that the case of the petitioner and others who were subjected to vigilance proceeding at the time of appointment to MFS Grade-III by the Selection Committee, is well taken care of by paras 3 and 4 of the Government order dated 31.3.1999 by which 28 officers have been appointed as MFS Grade-III. Paras 3 and 4 of the order dated 31.3.1999 are quoted below : - "3. This order is without prejudice to the interest of those officers whose cases have not been considered by the Selection Committee on 16.3.1999 for administrative reasons. 4. The inter se seniority of the officers mentioned under para 1 above and those of the officers referred to in para 3 above shall be notified later on." 5. After several representations from the petitioner requesting the Government to formally accept the clearance given by the Director of Vigilance, as referred to above, only on 23.5.2000, the Government formally declared that the Departmental Enquiry against the petitioner was closed. It is contended that despite formal closure of the Departmental Enquiry, no steps was taken by the Government to consider appointment of the petitioner to Grade-III of the Manipur Finance Service. However, it is seen from the record that Joint Secretary, Department of Personnel, Government of Manipur vide letter dated 25.1.2002 (Annexure-9 to the writ-petition) sought vigilance clearance from the Special Secretary, Vigilance in respect of 20 officers for consideration of absorption/appointment to MFS Grade-III and the name of the petitioner appeared at Serial No. 3 of the 20 officers mentioned therein. It appears that no further action was taken after the aforesaid exercise. In the meantime, the petitioner came to retire on 26.12.2002 without being considered for absorption/appointment to MFS Grade-III. Having mired so, this petition is filed by the petitioner seeking an appropriate direction from this court. 6. It appears that no further action was taken after the aforesaid exercise. In the meantime, the petitioner came to retire on 26.12.2002 without being considered for absorption/appointment to MFS Grade-III. Having mired so, this petition is filed by the petitioner seeking an appropriate direction from this court. 6. The stand taken by the Government respondent in their affidavit is that as Departmental Enquiry was pending against the petitioner at the time of consideration for appointment, i.e., 16.3.1999, his case could not be considered for -want of clearance from the Vigilance Department, which was a necessary condition amongst others for consideration of absorption/appointment to MFS Grade-III post. Further stand of the Government is that it is the prerogative of the State Government to absorb/appoint persons to Manipur Finance Service as per requirement and petitioner has no locus standi to claim absorption or appointment to Manipur Finance Service Grade-III. However, the affidavit is completely silent as to whether the clearance of the vigilance is a statutory requirement or administrative requirement. The affidavit is also silent as to what had prevented the Government from considering the case of the petitioner after the vigilance case was formally closed. 7. After hearing the parties at length and on examination of the documents and affidavits, this court is of the opinion that the following issues emerge for consideration by this court: - (i) Whether absorption/appointment/promotion of an incumbent can be withheld on the ground of mere pendency of a departmental enquiry or criminal investigation ? (ii) Whether the sealed cover procedure shall also be applicable at the stage of a pendency of enquiry or criminal investigation, i.e., before reaching the stage of issuance of charge memo or submission of charge sheet, while considering the case of an incumbent for absorption/appointment/promotion? 8. The first issue cannot be considered in isolation and, as such, first and second issues are considered together. It is now fairly settled by various decisions of the Apex Court that only when charge memo is furnished to a delinquent official in a disciplinary proceeding or charge sheet is submitted in a criminal proceeding, disciplinary proceeding/criminal proceeding can be said to have been initiated and sealed cover procedure can be adopted by DPC/Selection Committee while considering for absorption/promotion of an employee who is subjected to such proceeding. Sealed cover so adopted can be opened only when the disciplinary/criminal proceedings are closed by exonerating or acquitting the delinquent officer. The underlying reasons for adoption of such procedure is for the purpose of safeguarding the interest of incumbents who often became victims of false case and frivolous proceeding. In case the disciplinary/criminal proceeding end up on exoneration and acquittal, such employee would normally be given all the benefits, entitled to, retrospectively from the date his juniors have been appointed/promoted as a result of such selection procedure. The pertinent issue involved in this case is what procedure is to be adopted during the pendency of an enquiry or criminal proceeding before reaching the stage mentioned above. In Union of India & Ors. v. K.V. Jankiraman & Ors., (1991) 4 SCC 109 , the Apex Court 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. To deny promotion the disciplinary/criminal proceedings must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee. The Apex Court further held that "promotion of an employee cannot be withheld on a mere pendency of an enquiry or criminal investigation before reaching the stage of submission of charge memo/charge sheet, as discussed above. Again in Coal India Ltd. & Ors. v. Saroj Kumar Mishra, (2007) 9 SCC 625 , the Apex Court held that vigilance clearance being the requirement of administrative instruction, not the requirement of any statutory rules, cannot be a ground to deny consideration for promotion in a case where neither charge memo has been issued nor charge sheet have been submitted. In such circumstances, an employee is entitled to be considered for absorption/promotion to higher post in terms of article 16 of the Constitution of India and this right can be withheld or be kept in abeyance only in terms of valid rules operating in the field. If the rules operating in the field do not provide that the promotion or appointment can be withheld or consideration for appointment/promotion can be denied, valuable right of an employee to be considered for absorption/promotion cannot be withheld. If the rules operating in the field do not provide that the promotion or appointment can be withheld or consideration for appointment/promotion can be denied, valuable right of an employee to be considered for absorption/promotion cannot be withheld. 9. In the present case, as discussed above, it is evident on record that there was an exercise for option under rule 6 from among the eligible officers, followed by publication of final seniority list on 2.1.1999, in which the name of the petitioner appeared at Serial No. 25. Further, paras 3 and 4 of the order dated 31.3.1999, as extracted above, clearly held out that the cases of those officers who could not be considered for initial appointment/absorption by the selection committee on 16.3.1999, would be considered at an appropriate time and, lastly, the letter dated 25.1.2002 written by the Joint Secretary, D.P. requesting for vigilance clearance from the Special Secretary, Government of Manipur, would indicate further consideration for absorption to MFS Grade-III. The above will clearly establish that consideration for absorption/appointment to MFS Grade-III is akin and is in the nature of promotion in view of the exercise mentioned above and also in view of better service benefits provided in the Manipur Finance Service. 10. The affidavit of the State Government have not even made a whisper about the powers and source of powers of the Government respondent to deny consideration for absorption/promotion of the petitioner to the Manipur Finance Service Grade-Ill. The Government also has failed to consider the case of the petitioner for appointment to MFS Grade-III even after the clearance of the vigilance case is said to be the ground for non-consideration of the petitioner's case on 16.3.1999. Admittedly, the requirement of vigilance clearance, is not the requirement of any statute operating in the field, but requirement is of administrative instruction. Thus, I have no hesitation to hold that denial of absorption/appointment of the petitioner to Manipur Finance Service Grade-III is arbitrary, illegal and violative of the law laid down by the Apex Court and, as such, the petitioner is entitled to a writ of mandamus from this court for consideration of absorption/appointment to Manipur Finance Service Grade-III from the date his juniors have been absorbed/appointed. 11. 11. In view of the above findings of this court, the respondents are directed to consider the case of the petitioner for absorption/appointment to Manipur Finance Service Grade-III from the date his juniors were absorbed/appointed, i.e., 3.3.1999 with all consequential benefits including financial benefits. It is made clear that the above exercise shall be completed by the respondents within a period of three months from the date of receipt of this order. 12. This writ petition stands allowed with the above direction. No costs.