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2010 DIGILAW 785 (HP)

Surinder Singh v. State of H. P.

2010-05-04

KURIAN JOSEPH, R.B.MISRA

body2010
JUDGMENT (Justice Kurian Joseph, C.J.) (Oral) - What is the stage and situation of sealed cover procedure to be followed by the Departmental Promotion Committee is the issue arising for consideration in this case. 2. The petitioner is aggrieved since he is denied promotion to the post of Assistant Engineer under the first respondent. While working as Junior Engineer in the feeder category, he was placed under suspension, pending inquiry. That was in the year 2004. Thereafter, the departmental proceedings were completed and the petitioner was exonerated in the said proceedings and he was reinstated in service also. On 14.3.2008, DPC met for preparation of select list. However, taking note of the fact that a criminal case was pending in respect of the very same allegations before the Special Judge, Dharamshala, a sealed cover procedure was adopted. According to the petitioner as on 14.3.2008 and even as on today, no charge has been framed against the petitioner. Hence it is submitted that the sealed cover is liable to be opened and in case the petitioner is otherwise suitable and eligible, he is to be promoted. 3. As far as the sealed cover procedure is concerned, the Office Memorandum reads 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:- i) Government servants under suspension; ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and iii) Government servants in respect of whom prosecution for a criminal charge is pending. 2.1. The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above alongwith other eligible candidates without taking into consideration the disciplinary case criminal prosecution pending. The assessment of the DPC including 'Unfit of Promotion' and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed. Findings, regarding suitability for promotion to the grade post of ........in respect of Sh..............(name of the Government servant). Not to be opened till the termination of the disciplinary case/ criminal prosecution against Sh............ The proceedings of the DPC need only contain the note 'The findings are contained in the attached sealed cover'. The cover will be superscribed. Findings, regarding suitability for promotion to the grade post of ........in respect of Sh..............(name of the Government servant). Not to be opened till the termination of the disciplinary case/ criminal prosecution against Sh............ The proceedings of the DPC need only contain the note 'The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover." 4. Learned Senior Additional Advocate General submits that in view of the pendency of the criminal case before the Special Judge, unless the criminal case is finally disposed of, the sealed cover cannot be opened. We are afraid, that contention cannot be appreciated. As on the date of OPC namely 14.3.2008, the petitioner was not under suspension and no disciplinary proceedings were pending. No charge, in any case, has been framed in any criminal Court and thus, the petitioner was not facing a trial in respect of any charge framed in a criminal case pending before the criminal Court. Merely because challan has been filed, the Rules do not contemplate the sealed cover to be kept as such. The third limb of paragraph 2 of the Office Memorandum, as extracted above, makes it clear that a Government Servant in respect of whom prescription for criminal charge is pending, alone is to be subjected to the procedure of sealed cover. In other words, if as on the date of the OPC, no charge had been framed against an incumbent by a criminal Court and such a case was pending before the criminal Court, the incumbent was liable to be considered, in case he is otherwise suitable and meritorious, in view of the position as reflected in the Office Memorandum, as extracted above, regarding the stage of the pendency of the criminal case namely the stage of prosecution being the post-charge. 5. In the above circumstances, we dispose of this writ petition directing the respondents to open the sealed cover and do the required further action in terms of the assessment by the OPC. This shall be done within a period of one month from the date of production of a copy of this judgment. M.R.B.