JUDGMENT : D.P. CHOUDHURY, J. 1. Challenge has been made to the order dated 15.5.2014 of the learned Odisha Administrative Tribunal (hereinafter called the Tribunal) passed in O.A. No. 2541 of 2013 whereunder the Tribunal has passed order to accord promotion to the opposite party no. 1 from the date her juniors got promoted. FACTS 2. The shorn off unnecessary details of the case of the petitioner are that the opposite party no. 1 is a member of Odisha Administrative Service of 1987 batch. It is stated that while the opposite party no. 1 was working in the cadre of OAS, Senior Branch, on 5.11.2012, Departmental Promotion Committee (hereinafter called the DPC) was convened and she was found suitable for promotion to the rank of OAS (super time scale) along with her juniors. Though the proceeding of DPC meeting held on 5.11.2012 was finalized and recommendation was issued, no notification effecting promotion on implementation of recommendation was issued till 28.5.2013, but by notification no. 14382 dated 28.5.2013, others were promoted to the rank of OAS (super time scale) ignoring the recommendation of the DPC in respect of the opposite party no. 1. In the meantime, there was a criminal case filed against the opposite party no. 1 alleging involvement of the present opposite party No. 1 as per the report of the Superintendent of Police, CID CB, Odisha, Cuttack. It was intimated by the Crime Branch that cognizance of the offence has been taken against the opposite party no. 1 on 14.5.2012 by the concerned Court. It is the further case of the opposite party no. 1 that while the proposal was submitted to Government to promote her along with other junior officers, her case was kept in sealed cover in view of the report of the Crime Branch. The opposite party no. 1 challenged the sealed cover procedure and filed O.A. No. 2541 of 2013 before the Tribunal and the Tribunal, relying upon the decision of the Hon’ble Supreme Court in the case of Union of India and others vs. K.V. Jankiraman and others, reported in (1991) 4 SCC 109 , allowed her Original Application on the ground that charge sheet in the criminal case was not served on the opposite party no. 1 by the date of meeting of the Selection Board on 5.11.2012 nor on 28.5.2013 when the recommendation of the Selection Board was implemented and others were given promotion. The Tribunal passed order to open the sealed cover and issue order of promotion in her favour from the date her juniors got promoted. Being aggrieved by such order passed by the Tribunal, the present writ petition has been filed by the State-petitioners. SUBMISSIONS 3. Mr. Sahoo, learned Additional Government Advocate submitted that the order of the Tribunal is illegal, improper and against the instructions of the Government in General Administration Department. According to him, an officer whose name is recommended for promotion to the Screening Committee but in whose case any of the circumstances mentioned in paragraph-3 of the Office Memorandum dated 18.2.1994 arise after the recommendations of the Screening Committee are received before he is actually promoted, will be considered as if his cases had been placed in a sealed cover by the Screening Committee. Paragraph-3 of such Office Memorandum dated 18.2.1994 is placed below: “3. Promotion of officers to the various posts/services At the time of consideration of cases of officers for promotion, details of such officers in the zone of consideration falling under the following categories should be specifically brought to the notice of the concerned Screening Committee. (i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceeding are pending; (iii) Government servants in respect of whom prosecution for criminal charge is pending.” 4. Mr. Sahoo, learned Additional Government Advocate stressed on the words “criminal charge pending.” He submitted that when the proposal was mooted to the Government for promotion of opposite party no. 1 and before the actual promotion order issued, the cognizance of the offence in a criminal case filed by the Crime Branch has been taken by the concerned Court and in such case, the present opposite party no. 1 was later added as an accused. So, on the date of promotion, there was criminal case pending against the opposite party no. 1 for which learned Tribunal has failed to understand the real object behind the aforesaid Office Memorandum and superficially by putting stress on the decision reported in Union of India and others vs. K.V. Jankiraman and others (supra). 5. Mr. So, on the date of promotion, there was criminal case pending against the opposite party no. 1 for which learned Tribunal has failed to understand the real object behind the aforesaid Office Memorandum and superficially by putting stress on the decision reported in Union of India and others vs. K.V. Jankiraman and others (supra). 5. Mr. Sahoo, learned Additional Government Advocate further submitted that the order of the Tribunal is without application of judicial mind and the Tribunal has passed the order that since there was no criminal case pending against the opposite party no. 1 on the date of DPC convened the meeting recommending her name, she is entitled to get promotion, but not without following the sealed cover procedure. The Tribunal has failed to understand the real object of sealed cover procedure. So, he submitted that the order of the Tribunal be set aside by allowing the writ petition. 6. Miss D. Mohapatra, learned counsel for the opposite party no. 1 submitted that on 5.11.2012 when the selection committee found the opposite party no. 1 suitable for promotion and recommended her case, there was no criminal case pending against her on that date. According to her on 14.5.2012, a charge sheet was filed against six accused persons and the name of the opposite party no. 1 was does not find place. She further stated that later on the present opposite party no. 1 along with others were charge sheeted on 21.3.2013 which is much after the selection committee recommended the name of opposite party No. 1 for promotion. According to her, the Hon’ble Supreme Court in Union of India and others vs. K.V. Jankiraman and others (Supra) passed order that sealed cover procedure can be resorted to only after charge-memo/charge-sheet is issued and the pendency of the preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. So, she submitted that since there was no criminal case pending under law on the date of her recommendation for promotion, purportedly she has been promoted on that day and no way can it be said that the criminal case is pending on the date of her promotion. So, she submitted that since there was no criminal case pending under law on the date of her recommendation for promotion, purportedly she has been promoted on that day and no way can it be said that the criminal case is pending on the date of her promotion. She supported the judgment of the learned Tribunal absolutely and further submitted that as per notification dated 4.7.1995 issued by the Government of Odisha in General Administration Department which is still in force, the opposite party no. 1 can be allowed ad hoc promotion when her promotion is not in public interest by holding another DPC. So, in alternative, she submitted that ad hoc promotion should be given to the opposite party no. 1 in case regular promotion is not desired by the employer till the criminal case is not disposed of. DISCUSSION 7. It is admitted fact that the opposite party no. 1 was a member of the Odisha Administrative Service, Senior Branch cadre and the DPC was held on 5.11.2012 for promotion to the cadre of Selection Grade and accordingly proposal was sent to the State Government recommending her case for promotion. It is also admitted fact that there was a criminal case pending against the opposite party no. 1 in the Court of the learned S.D.J.M., Cuttack Sadar, Cuttack. It is also not in dispute that finally charge sheet was submitted against three accused persons including the present opposite party no. 1, but before that on 11.5.2012, charge sheet has been submitted against six accused persons. It is also admitted fact that the concerned criminal Court took cognizance of the offence on 14.5.2012 against six accused persons whose names have been already revealed in the preliminary charge sheet dated 11.5.2012, but the supplementary charge sheet dated 21.3.2013 against present opposite party no. 1 was tagged to the original case record wherein the cognizance of offence has been taken on 14.5.2012. 8. Learned Additional Government Advocate placed notifications vide Annexure-2 of the Government. From paragraph-3 of the notification dated 18.2.1994, it appears that at the time of consideration of the cases for promotion, it should be brought to the notice of the concerned Screening Committee against Government servant in respect of whom a charge-sheet has been issued and disciplinary proceeding are pending and Government servant in respect of whom prosecution for criminal charge is pending. Again in the said notification at paragraph-9, it has been clearly stated that after the recommendations of the Screening Committee are received but before promotion if there is criminal charge pending then sealed cover procedure would be adopted by the Screening Committee. It is made clear that as long as actual promotion not made but Screening Committee recommendation is there, the sealed cover procedure would be adopted subject to suitability for promotion and as such sealed cover will be opened on conclusion of disciplinary case or criminal prosecution. It is further found from paragraph-9 that in case of complete exoneration from the case, he will get all arrear benefits with the promotion. 9. Mr. Sahoo, learned Additional Government Advocate brought to the notice of the Court the notification of the State Government issued on 28.5.2012 in General Administration Department which states as follows: “However, in a criminal case, charge sheet is not issued but is served on the accused after cognizance is taken by the Court which presupposes filing of charge sheet. As there is possibility of the accused evading summons after charge sheet has been filed by the prosecution and/or taking adjournment which can cause delay in serving the charge sheet on the accused, it is now further clarified that sealed cover procedure shall be adopted in all criminal cases where cognizance has been taken by the Court.” 10. In view of the aforesaid Government instructions, it is clear that sealed cover procedure shall be adopted in all criminal cases where cognizance has been taken by the Court. In the instant case, cognizance of the offence has been taken on 14.5.2012 as per admitted fact but it was not brought to her knowledge as long as the opposite party no. 1 has not received the copy of the charge sheet. No doubt the supplementary charge sheet against her was filed in 2013. Since cognizance of offence has been taken tagging the case to the original charge sheet and it dates back to 14.5.2012, without going to the further merits of the case, we are of the view that sealed cover procedure has been rightly adopted in this case for the sake of the Government instructions as discussed above. 11. Since cognizance of offence has been taken tagging the case to the original charge sheet and it dates back to 14.5.2012, without going to the further merits of the case, we are of the view that sealed cover procedure has been rightly adopted in this case for the sake of the Government instructions as discussed above. 11. Keeping the issue as to whether the sealed cover procedure should be adopted by applying the decision of the Hon’ble Supreme Court in the case of Union of India and others vs. K.V. Jankiraman and others (Supra) open in a peculiar circumstance of this case where charge sheet has not been issued, we may dwell upon the further Government circular issued in 1995. Learned counsel for the opposite party No. 1 relied upon such Government Office Memorandum dated 4.7.1995 issued by the General Administration Department: “GENERAL ADMINISTRATION DEPARTMENT OFFICE MEMORANDUM The 4th July 1995 Subject:- Promotion of Government Servants against whom disciplinary/criminal proceedings are pending procedure to be followed. No. 14640-Gen. – The procedure to be adopted by the D.P.C., while selecting Employees for promotion to the next higher grade when any Disciplinary/Criminal Proceedings is pending has been laid down in G.A. Department Office Memorandum No. 3928-Gen., dated the 18th February 1994. It has come to the notice of the Government that difficulties are being experienced in the cases where disciplinary proceeding/criminal prosecutions against the Government Servants are pending for a long period without being disposed of. The delay is unfairly depriving of such Government Servants from getting promotions to the next higher grade. 2. It has come to the notice of the Government that difficulties are being experienced in the cases where disciplinary proceeding/criminal prosecutions against the Government Servants are pending for a long period without being disposed of. The delay is unfairly depriving of such Government Servants from getting promotions to the next higher grade. 2. The Government, after careful consideration of all the aspects and in partial modification of the instructions contained in G.A. Department Office Memorandum No. 3928-Gen., dated the 18th February 1994 referred to above, have been now pleased to decide as follows :- (i) xxx xxx xxx (ii) xxx xxx xxx (iii) In the cases, where criminal prosecution/disciplinary cases against the delinquent Government employees, have not come to an end even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee, the Appointing Authority may review the withheld promotion cases (provided the delinquent Government employees are not under suspension) to consider the desirability of giving the ad hoc promotion keeping in view the following aspects:- (a) Whether the promotion of the employee will be against the public interest (b) Whether the charges are grave enough to warrant continued denial of promotion (c) Whether there is likelihood of the case coming to a conclusion in the near future (d) Whether the delay in the finalisation of the proceedings, departmental or in a Court of Law, is not directly or indirectly attributable to the employee concerned. (e) Whether there is any likelihood of misuse of the Official position, that the employee may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution. In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his case should be placed before the next D.P.C. to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his case should be placed before the next D.P.C. to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. If the employee is considered suitable, on the basis of the totality of his record of service, without taking into account the pending disciplinary case/criminal prosecution against him, an order of promotion may be issued making it clear that:- (i) the promotion is being made purely on ad hoc basis and the ad hoc promotion will not confer nay right for regular promotion; (ii) the ad hoc promotion shall survive until further orders. (iii) If should also be indicated in the orders that the Government reserve the right to cancel the ad hoc promotion at any time and revert the employee to the post from which he was promoted without assigning any reason therefor. All other conditions contained in the aforesaid Office Memorandum remain unchanged. Sd/- SANTOSH KUMAR Special Secretary to Government” 12. For our clarification, the General Administration Department through Mr. Sahoo, learned Additional Government Advocate informed that such circular is also in force being not recalled or modified so far. The Government has also admitted that it would be applied in the case of the present opposite party no. 1. 13. The relevant portion of the impugned order passed by the Tribunal is quoted below: “6. Considering the submissions made by the learned counsel for both parties, as it appears it is the admitted case of the State respondents that in the meeting of the Selection Board held on 5.11.2012 the applicant was found suitable for promotion and accordingly the Selection Board recommended the applicant, along with other officers, including respondent Nos. 4 and 5 for their promotion to O.A.S. (Super-time scale). The recommendation of the Selection Board was implemented by issuing orders of promotion in favour of respondent Nos. 4 and 5 vide order 28.5.2013, (Annexure-2). Since cognizance in the criminal case filed against the applicant was taken on 21.4.2013, deemed sealed cover has been adopted in respect of the applicant retrospectively. 7. The recommendation of the Selection Board was implemented by issuing orders of promotion in favour of respondent Nos. 4 and 5 vide order 28.5.2013, (Annexure-2). Since cognizance in the criminal case filed against the applicant was taken on 21.4.2013, deemed sealed cover has been adopted in respect of the applicant retrospectively. 7. Since charge sheet in the criminal case was not served on the applicant by the date of meeting of the Selection Board on 5.11.2012 nor on 28.5.2013 when the recommendation of the Selection Board was implemented and respondent Nos. 4 and 5, who are junior to the applicant, were given promotion, I am of the considered view, the deemed sealed cover procedure adopted retrospectively in the case of applicant, on the plea that cognizance has been taken on 21.4.2013, is not legal and justified, keeping in view the decision of the Hon’ble Supreme Court. 8. In view of the above and since the applicant has already been recommended by the Selection Board in their meeting dated 5.11.2012 has charge sheet in the criminal case, was not served on the applicant by that date, as admitted in the counter filed by the respondents, respondent no. 1 and 2 are directed to open the sealed cover in respect of the applicant and issue order of promotion in her favour from the date her juniors got such promotion with all consequential and service benefits within a period of one month from the date of communication of this order, if there is no other legal impediment.” 14. From the aforesaid paragraphs of the impugned orders, it appears that the Government Notification of 1994 and subsequent to the notification of 1995 having not been taken into consideration, the Tribunal has passed the above order. We are, therefore, of the considered view that the impugned order of Tribunal lacks of brevity and application of proper procedure as declared by the State Government. So, we do not agree with the view taken by the learned Tribunal. 15. In view of the aforesaid analysis, since the cognizance of the offence has been taken on 14.5.2012 although the supplementary charge sheet was submitted in 2013 against the present opposite party no. So, we do not agree with the view taken by the learned Tribunal. 15. In view of the aforesaid analysis, since the cognizance of the offence has been taken on 14.5.2012 although the supplementary charge sheet was submitted in 2013 against the present opposite party no. 1 and fact that the Screening Committee held its DPC on 5.11.2012, the sealed cover procedure should be adopted, but in view of the Government circular dated 4.7.1995, the petitioners should consider the case of the present opposite party no. 1 for giving ad hoc promotion when the DPC held on 5.11.2012 recommending her suitable for promotion and the fact that the vigilance case is still pending. 16. In the result, we allow the writ petition by setting aside the order dated 15.5.2014 of the learned Tribunal passed in O.A. No. 2541 of 2013 and direct the petitioners to consider the case of the opposite party no. 1 for ad hoc promotion by following the Government Circular dated 4.7.1995 from the date when her juniors got promoted. The entire exercise should be completed within a period of eight (8) weeks from today. The writ petition is disposed of accordingly.