JUDGMENT : Bharati H. Dangre, J. 1. Heard. Rule. Rule made returnable forthwith. Heard by consent of parties. 2. The petitioner, working as Assistant Accounts Officer (Group II) in the Directorate of Accounts, Panaji, Goa, the respondent no.3 seek a writ in the nature of mandamus directing the respondents to open the sealed cover containing the recommendations of the DPC held in the year 2015 for the post of Deputy Director of Accounts / Account Officer and on the basis of the recommendations, seek his promotion to the said post with effect from 31/12/2015 being the date on which his juniors were promoted. Consequent thereto, he seek direction to the respondent to open the sealed cover containing the recommendations of the DPC held in the year 2020 for the post of Joint-Director of Accounts (Group "A" Gazetted) and seek his promotion to the said post subject to the recommendations of the DPC, from 22/07/2020 i.e. the day on which his juniors were promoted. The petitioner also seek a prayer in the alternative of direction to the respondents to open the sealed cover containing the recommendations of DPC held on 07/02/2020 and subject to the said recommendations promote the petitioner to the post of Deputy Director of Accounts w.e.f. 06/02/2020. 3. The controversy involved in the petition and the backdrop in which the aforesaid reliefs are sought lies in a narrow compass and is culled in the following paragraphs. We say so since we are not expected to delve into the merits of the proceedings initiated against the petitioner or the justification of the penalty imposed. The petitioner was appointed to the post of Accountant in the office of respondent no. 3 on 23/06/2000. He was promoted to the post of the Assistant Accounts Officer (Group “B” Gazetted) on 15/03/2011. While he was holding the said post he was directed to submit the full particulars of the immovable properties inherited by him or owned by him and his family. It is the case of the petitioner that he filed the annual statement of the immovable property for the year ending on 31/12/2011. While he was holding the said post he was directed to submit the full particulars of the immovable properties inherited by him or owned by him and his family. It is the case of the petitioner that he filed the annual statement of the immovable property for the year ending on 31/12/2011. A complaint was filed by one person where it was alleged that the petitioner was also engaged in the business of hiring vehicles belonging to him but the person who made the said complaint subsequently clarified that he has not filed any such complaint against the petitioner but some unknown person, by impersonating him, had lodged the complaint. The case of the petitioner as set up in the petition and also submitted before us is that the Government had already issued a circular extending the time limit regarding disclosure of full particulars of the property and this was in form of a one time amnesty scheme for disclosure of details of movable and immovable properties. 4. On 31/12/2014, the petitioner was served with a memorandum accompanied by the statement of articles of charges, and the enquiry was proposed to be held into the four charges. The petitioner responded to the same by submitting his detailed reply on 12/01/2015. On 01/10/2015, i.e. after a passage of about 10 months the Enquiry Officer and the Presenting Officer came to be appointed for conduct of enquiry. The petitioner has set out the details of the enquiry proceedings and allege that it was being delayed inordinately and he also made grievance to the authorities from time to time. Since we are not concerned with the aspect as to what caused the delay, but we take on record the fact that it was only on 10/01/2019, the enquiry report dated to 02/11/2018 was submitted by the Directorate of Vigilance, Goa. On 23/10/2019 a minor penalty of censure was imposed on the petitioner in terms of Rule 11 (i) of the CCS (CCA) Rules, 1965. The petitioner has assailed the said order in an appeal before the appellate authority, His Excellency Governor of Goa and the said appeal, is informed to be pending till date. 5. On 23/10/2019 a minor penalty of censure was imposed on the petitioner in terms of Rule 11 (i) of the CCS (CCA) Rules, 1965. The petitioner has assailed the said order in an appeal before the appellate authority, His Excellency Governor of Goa and the said appeal, is informed to be pending till date. 5. In nutshell the grievance of the petitioner is that on the enquiry being completed and since the name of the petitioner appeared in the final list of seniority of Assistant Accounts Officers published on 07/03/2019 at serial no.1, the petitioner earnestly requested the authorities to consider his case for promotion by placing it before the Departmental Promotion Committee (DPC). The name of the petitioner however did not appear in the list of officers promoted on 10/02/2020 but officers who had ranked at serial no. 12 onwards in the seniority list dated 07/03/2019 were promoted. Convinced that the said action as blemish on his record, the petitioner preferred representation to the Commissioner and Secretary Finance, Government of Goa and requested to consider the name of the petitioner for promotion on conclusion of the disciplinary proceedings and sought promotion. On 14/05/2020 the petitioner sought information under RTI and it was revealed to him that the Directorate of Vigilance vide letter dated 06/12/2019 had withheld the vigilance clearance required for promoting the petitioner. The reason cited was the penalty of censure imposed upon him and the currency of the punishment being in force. The petitioner has placed on record the response on his representation addressed to the Chief Secretary and Ex- Officio Chief Vigilance Officer as contained in a Note which is placed on record along with the petition. On 22/07/2020 promotion order was issued in favour of the various Deputy Directors to the post of Joint Director and since the persons junior to the petitioner was promoted, he knocked doors of this Court by filing the present Writ Petition and has sought the aforesaid relief. 6. On 22/07/2020 promotion order was issued in favour of the various Deputy Directors to the post of Joint Director and since the persons junior to the petitioner was promoted, he knocked doors of this Court by filing the present Writ Petition and has sought the aforesaid relief. 6. Mr T. Sequeira, the learned counsel for the petitioner would lay emphasis on the injustice meted out to the petitioner and would submit that the claim of the petitioner for promotion was kept pending on the pretext of the ongoing disciplinary proceedings though the proceedings were initiated at the end of 2014 and to be precise on 31/12/2014, the final order of penalty was imposed only on 23/10/2019 and this unprecedented delay has denied him the opportunity for promotion to the higher post and his juniors came to be promoted. The learned counsel has relied upon the noting dated 09/06/2020 wherein the issue of the promotion of the petitioner was exhaustively dealt with and relying upon circular dated 28/12/2017 it was noted that all the cases of vigilance will be covered by the Department of Personnel and Training Office memorandum dated 14/12/2007, 02/11/2012 and 21/10/2013. The office memorandum dated 14/12/2007 the crucial OM relied upon according to the Note and it specified that the vigilance clearance will normally be not granted for a period of three years after the currency of the punishment, if a minor penalty has been imposed upon the Officer. The endorsement on the said Note record that in light of the said memorandum it may not be possible to consider the request of the petitioner and it is rejected. 7. The learned counsel for the petitioner has painstakingly taken us through the various memorandums and submit that the same are not at all applicable to the case of the petitioner and since censure is a minor penalty, and when he has been made to wait long for availing his promotion, in spite of he being senior most candidate in the list, the respondents are artificially creating an embargo for his further promotion, though he has cleared the hurdle of the disciplinary proceedings and what is imposed on him is a penalty of censure, which is a minor penalty. Per contra, the learned Advocate General Mr. Per contra, the learned Advocate General Mr. Pangam has invited our attention to the circulars relied upon in the Note and would fervently urge that the petitioner is under misconception that the censure is not a penalty. He would placed reliance on the decision of the Apex Court in case of Union of India and Ors versus A.N.Mohanan [ (2007) 5 SCC 425 ] where it is categorically held that awarding of censure is a blameworthy factor and referring to the Rule 3.1 of the office memorandum applicable to the petitioner therein, it has been held that where any penalty has been imposed the findings of seal cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course. The learned Advocate General however fairly concedes that the circular dated 14/12/2007 is the one which governs the field of promotion and other two circulars being dated 02/11/2012 and 21/06/2013 are inapplicable to the case of the petition. He would further asseverate that if the submission of the petitioner is accepted, it would create a situation where a person against whom disciplinary proceedings are pending do not get a vigilance clearance but a person on whom penalty is imposed would get the said clearance. This according to him would create an unreasonable classification and would not withstand the test of Article 14. The learned Advocate General, therefore, urge that the Writ Petition deserves to be dismissed. 8. With assistance of the learned respective counsel we have perused the Writ Petition along with its annexures and also the affidavit filed on behalf of the respondent no. 4 on 15/01/2021 opposing the relief sought in the petition, along with all the Annexures appended thereto. The sealed cover procedure is now a well established concept in service jurisprudence. The said procedure is adopted when an employee is due for promotion, increment etc. against whom disciplinary/ criminal proceedings are pending and hence finding as to his entitlement to the benefits of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over. The procedure governing the said aspect is contained in various circulars which forms the genesis of the present petition. against whom disciplinary/ criminal proceedings are pending and hence finding as to his entitlement to the benefits of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over. The procedure governing the said aspect is contained in various circulars which forms the genesis of the present petition. The reason for rejecting the claim of the petitioner for consideration of promotion after culmination of the disciplinary proceedings into imposition of the penalty of censure is to be found in the Note dated 09/06/2020 where reliance is placed on the said office memorandum dated 14/12/2007. The said office memorandum issued by the Government of India, Ministry of Personnel and Public Grievances and Pensions (Department of Personnel and Training) deal with the subject of "Guidelines regarding grant of vigilance clearance to members of the Central Civil Services/ Central Civil Posts". Though we may not reproduce the entire circular, we would like to reproduce its preface and clause of applicability: "The undersigned is directed to say that the matter regarding guidelines for giving vigilance Clearance to members of the Central Civil Services/ Central Civil posts has been reviewed by the Department of Personnel & training and it has been decided that the following guidelines for the grant of vigilance Clearance to the Government servants belonging to the Central Civil Services/ Central Civil posts shall be applicable with immediate effect: 1. These orders regarding accordance of vigilance clearance to members of the Central Civil Services/posts shall be applicable with respect to (a) empanelment (b) any deputation for which clearance is necessary, (c) appointments to sensitive posts and assignments to training programmes (except mandatory training). In all these cases, the vigilance status may be placed before and considered by the Competent Authority before a decision is taken." Para 2 of the said memorandum then enumerate the circumstances under which vigilance clearance shall not be withheld and it contemplates five such contingencies. Bare reading of the said circular makes it clear that the said orders regarding accordance of vigilance clearance to members of Central Civil Services is applicable in case of the three contingencies, being empanelment, deputation where clearance is necessary and appointments to sensitive posts and assignments to training programmes. This do not contemplate contingency of promotion. Bare reading of the said circular makes it clear that the said orders regarding accordance of vigilance clearance to members of Central Civil Services is applicable in case of the three contingencies, being empanelment, deputation where clearance is necessary and appointments to sensitive posts and assignments to training programmes. This do not contemplate contingency of promotion. It is only in the contingencies enumerated in clause (1) of the office memorandum, the vigilance status is directed to be placed and considered by the competent authority before a decision is taken. The reliance has been placed on a circular dated 28/12/2017 issued by the Directorate of Vigilance State of Goa. This circular issued by Director (Vigilance) deal with the issue pertaining to withholding the vigilance clearance and reads as under: “The issue pertaining to withholding of vigilance clearance was placed before the Court. It has been decided by the Court that in cases for promotion no vigilance clearance will be issued in following cases: (i) Government servants under suspension; (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; (iii) Government servants in respect of whom prosecution for a criminal charge is pending; and (iv) Government servants fails to submit his annual immovable property return of the previous year by 31st January of the following year, as required under Government of India decision under Rule 18 of the Central Civil Services (Conduct) Rule, 1964. Further all the cases for Vigilance clearance will be governed by Department of Personnel and Trainings Office, Memorandum dated 14/12/2007, 02/11/2012 & 21/06/2013." 9. The Advocate General has already conceded that the circular dated 02/11/2012 and 21/06/2013 do not govern the field of promotion and in light of the said concession we need not touch the said circulars. The office memorandum annexed along with the petition which culled out the procedure to be followed in promotion of Government servants against whom disciplinary/Court proceedings are pending and which is Dated 14/09/1992 is also on record. The said circular stipulate the following: "3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. The said circular stipulate the following: "3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. 3.2 It is also clarified that in a case where disciplinary proceedings have been hold under the relevant disciplinary rules, ‘warning’ should not be issued as a result of such proceedings. If it is found as a result of the proceedings, that some blame attached to the Government servant; at least the penalty of ‘censure’ should be imposed." 10. The learned counsel for the petitioner has also placed reliance on the office memorandums being placed at Annexure P-55 (colly). An office memorandum dated 15/02/1979 dealt with the sealed cover procedure and the effect of warning, censure etc. on promotion. The procedure to be adopted when a penalty of censure is imposed is clarified in the said circular. The said office memorandum when read carefully, reveal that it was necessitated since there was a procedure of sealed cover to be adopted for granting benefits with retrospective effect on complete exoneration of official concerned. It was recorded that a practice of issuing a "recordable warning" to Government employees was in whole affecting their career prospects. In this backdrop the directives were issued to the following effects: "Where the departmental proceedings have ended with the imposition of a minor penalty, viz. Censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employees, kept in the sealed cover, will not be given effect to. But the case of the employee concerned for promotion/ confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings. If the findings of the DPC are in favour of the employee, he may be promoted in his term if the penalty is that of “censure” or “recovery” of pecuniary loss caused to the Government by negligence or breach of orders”. If the findings of the DPC are in favour of the employee, he may be promoted in his term if the penalty is that of “censure” or “recovery” of pecuniary loss caused to the Government by negligence or breach of orders”. In the case of employees who have been awarded the minor penalty of “withholding of promotion, promotion can be made only after the expiry of the penalty." The cumulative reading of the said office memorandum and in particular the memorandum dated 14/12/2007 contemplate that vigilance clearance is not imperative in case of promotion. 11. The term “Censure”, which is a minor penalty under the CCA Rules has a definite connotation and according to its dictionary meaning it expresses severe disapproval, especially in a formal punishment. It is an act of blaming or condemning sternly. The learned Advocate General is perfectly justified in asserting that censure, is no doubt is a penalty and it is a blameworthy factor. But the question for consideration is whether the office memorandum, contemplate that in case of promotion, after inflicting a penalty of censure, whether the period of currency of the said penalty would result in deprivation of promotion for the next three years. 12. The non-consideration of a candidature of the petitioner for promotion during the period when he was subjected to the disciplinary proceedings can be very well justified by not considering him for promotion. Though we would restrain ourselves from commenting upon the manner in which the disciplinary proceedings have proceeded and do not seriously consider the allegations levelled by the petitioner that the delay in completion of the proceedings was intentional, we cannot shut out eyes to the fact that the proceedings were initiated against the petitioner in the year 2014 and to be precise the chargesheet being served on him on 31/12/2014. The enquiry report dated 02/11/2018 was forwarded to the disciplinary authority on 10/01/2019 and it is only on 23/10/2019 the proceedings are culminated by imposing a minor penalty of censure on the petitioner. Though we are in agreement with the submissions of the learned Advocate General that censure is a penalty, his submission to the effect that the office memorandum dated 14/12/2007 which put an embargo of vigilance clearance for a period of three years after the currency of the punishment, gets attracted in present case, is according to us unconvincing. Though we are in agreement with the submissions of the learned Advocate General that censure is a penalty, his submission to the effect that the office memorandum dated 14/12/2007 which put an embargo of vigilance clearance for a period of three years after the currency of the punishment, gets attracted in present case, is according to us unconvincing. This we say so on two accounts, namely the office memorandum dated 14/12/2007 do not govern the field of promotion and the said office memorandum contemplate vigilance clearance for the members of Central Civil Services/ posts only in respect of the contingencies stipulated therein and to which we have referred above by clause (1) of the office memorandum. This do not cover cases for promotion. If the office memorandum itself is not attracted in cases of promotion, the embargo created in clause (1) of the said office memorandum to the effect that the vigilance clearance will not normally be granted for a period of three years after the currency of the punishment, if a minor penalty has been imposed would also not get attracted in the case of the petitioner. On another count we find that a person like the petitioner who has been inflicted a minor penalty as a outcome of the disciplinary proceedings which continued for more than 6 years cannot again be deprived of his right of consideration for promotional post and the contingency cannot be postponed after 3 years. Since censure is a penalty which is a formal punishment though no doubt it is a penalty but by applying the interdiction of 3 years period as contemplated by the office memorandum, this would result in a situation where the petitioner will be kept away from his aspiration to be promoted to the next higher post in spite of the fact that a minor penalty has been levied upon him. Rejecting the contention that the petitioner is governed by the office memorandum dated 14/12/2007 we hold that on imposition of penalty of censure his right to be considered for promotion cannot be blocked for three years and the petitioner is entitled to be considered for the next promotional post. Rejecting the contention that the petitioner is governed by the office memorandum dated 14/12/2007 we hold that on imposition of penalty of censure his right to be considered for promotion cannot be blocked for three years and the petitioner is entitled to be considered for the next promotional post. The candidature of the petitioner for the next promotion is not considered in the wake of the office memorandum dated 14/12/2007 and this is the only reason why his representation requesting consideration of his case has been rejected and the vigilance clearance denied to him. On 22/07/2020, the Directorate of Accounts promoted the person's junior to the petitioner to the post of Deputy Director of Accounts / Accounts Officer and issued further promotion orders to the post of Joint Director of Accounts, keeping the petitioner out of the zone of consideration. This action of the respondents according to us cannot be sustained as there is no office memorandum issued by the Department of Personnel and Training or by the Directorate of Vigilance Government of Goa which would justify the decision of the respondents in having a cooling period of 3 years after imposition of minor penalty before the case of the petitioner is being considered for promotion to the higher post. 13. Now the question arises as to what is the benefit to which the petitioner is entitled since the petitioner has sought prayer in the alternative. In terms of the decision of the Hon’ble Apex Court in case of Union of India versus KV Jankiraman [ (1991) 4 SCC 109 ], the Apex Court has dealt with the repercussion of the sealed cover procedure and contemplate that when a person is completely exonerated after the departmental proceedings, he can be considered for a deemed date/ a notional date for promotion when his juniors came to be promoted. However, the decision of the Tribunal that in every case such an employee will be entitled to the entire salary is frowned upon in the following words: “An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in present. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified.” 14. In the light of the aforesaid authoritative pronouncement by the Apex Court which has been subsequently followed in catena of decisions, we do not think that the petitioner deserve a relief sought in prayer clause (a). In the facts and circumstances of the case we are however of the opinion that the petitioner deserve a relief prayed in the alternative. Accepting the said alternate prayer we direct the respondents to open the sealed cover containing the recommendations of DPC held on 07/02/2020 and subject to the said recommendations promote the petitioner to the post of Deputy Director Accounts from the date on which his juniors are promoted and the said date being 10/02/2020 when the persons junior to him as reflected in seniority list published by the respondent no.3 on 07/03/2019 have been promoted. If the petitioner is found to be eligible by the DPC for promotion, the promotion order should be issued forthwith with a notional date being awarded as 10/02/2020 and his salary should be fixed in the pay scale of the promotional post along with all consequential benefits flowing therefrom. Another direction which according to us, would serve the cause of justice is a request to the Hon'ble Governor, to dispose of the Appeal preferred by the petitioner, against his order of imposition of penalty. We hope and trust that the same would be done as expeditiously as possible. 15. With the aforesaid directions, Rule made absolute in terms of the alternate prayer (a). No order as to costs.