JUDGMENT : A.Y. KOGJE, J. 1. By way of the present appeal, the appellant seeks to challenge order dated 24.01.2024 in Special Civil Application No. 16493 of 2017, whereby the present appellant-original respondent was directed to forthwith open the sealed cover containing recommendation of the DPC of the year 2008 onwards and was also directed to give promotion effect thereto immediately but not later than a period of six weeks from the date of receipt of the said order dated 24.01.2024. Furthermore, the respondent herein-original petitioner, upon being granted promotion, was held to be entitled to all consequential benefits accruing therefrom. 1.1 The subject-matter of challenge under Special Civil Application No. 16493 of 2017 was the Final order of punishment imposed by the Disciplinary Authority dated 19.09.2014, order of the Appellate Authority upholding the decision of the Disciplinary Authority dated 17.05.2017 and inter office memorandum dated 22.07.2014 regarding the inquiry report. Incidental prayers were also made seeking promotion from Grade B’ to Grade ‘C’ with effect from March, 2008. 2. Learned Advocate for the appellant submitted that Civil Application No. 2 of 2024 is filed for production of additional evidence. According to him, the application is necessitated as certain documents, i.e. order dated 29.06.2007, which was referred to by the learned Single Judge and also perused at the relevant time, but not placed on record and copy of Special Chapter on Vigilance Management in Public Sector Enterprises and the Role and Functions of the CVC for the purpose of use of word “tentatively” on which the learned Single Judge has led great emphasis. Both the documents being within the knowledge of the respondent-original petitioner, who is present as party-in-person and has no objection if cognizance of the same is taken even during hearing before the learned Single Judge, the same have already been referred to. 2.1 Learned Advocate for the appellant has thereafter challenged the order of the learned Single Judge on two counts, the first contention being that the learned Single Judge has misconstrued the word “tentative”, which is the terminology used in order dated 29.06.2007. 2.1 Learned Advocate for the appellant has thereafter challenged the order of the learned Single Judge on two counts, the first contention being that the learned Single Judge has misconstrued the word “tentative”, which is the terminology used in order dated 29.06.2007. It is argued that as the inquiry involved various other officers including an officer of higher level, it was required to invoke and follow the guidelines of the Chief Vigilance Commissioner and in such guidelines, word “tentative” has been utilized and therefore only, in order dated 29.06.2007, word “tentative” is used, otherwise Director (Marketing) was confirmed to initiate disciplinary inquiry, as a result of which DPC result qua the respondent was put in sealed cover. Learned Advocate for the appellant in this connection has further argued that nature of charges against the respondent and other officials was very serious and had attained proposition of scam relating to supply of Light Diesel Oil (LDO) and therefore, decision of the appellant was justified in initiating departmental inquiry for a serious charge. 2.2 The second contention raised is with regard to non-appreciation of the arguments of the appellant on the ground of delay in challenge made by the respondent-original petitioner in filing the petition. It is submitted that since 2008, five DPCs were undertaken and the outcome of such DPC qua the respondent was put in sealed cover and thereafter, only in the year 2017, the respondent has challenged the decision of the appellant in grating promotion to the respondent with effect from 2015. Learned Advocate for the appellant has relied upon decision of the Apex Court in case of Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735 , particularly relying upon Para-9. 3. As against this, party-in-person has argued that though much emphasis is led by the learned Advocate for the appellant on the seriousness of charge, ultimately, upon conclusion of full fledged departmental inquiry, punishment of censure is awarded to the petitioner and the petitioner has sought liberty of this Court to challenge such order by filing separate proceedings. 3.1 Party-in-person submitted that great injustice has been meted out to the respondent in not taking into consideration outcome of DPC, which was in the year 2008 and it is his case that considering the nature of charge, if at all is to be considered, then also, in the facts of the respondent, sealed cover procedure was not required. 3.1 Party-in-person submitted that great injustice has been meted out to the respondent in not taking into consideration outcome of DPC, which was in the year 2008 and it is his case that considering the nature of charge, if at all is to be considered, then also, in the facts of the respondent, sealed cover procedure was not required. He therefore drew attention of this Court to the inter office memo dated 08.02.2012 regarding procedure for sealed cover in promotion policy and submitted that there are only contingencies under which sealed cover procedure could have been adopted. The case of the respondent does not fall in any of the three contingencies and therefore, in fact, putting outcome of the DPC qua the respondent in sealed cover itself was illegal. 4. In rejoinder, learned Advocate for the appellant, justifying the action of giving promotion to the respondent with effect from 2015, has relied upon inter office memo dated 16.01.2012, also pertaining to sealed cover procedure in promotion policy for officers and drew attention of this Court to clause-6, which provides that wherever penalty is inflicted, be it a minor penalty as a result of disciplinary proceeding, sealed cover procedure shall not be acted upon and the case of promotion of such employee is to be considered in next DPC. It is argued that next DPC had taken place in the year 2015 and therefore, when the final order of censure was passed on 19.09.2014, the appellant has acted as per the prevailing policy. 5. Having heard learned Advocates for the parties and having perused documents on record, it appears that the respondent herein-original petitioner was appointed as probationary officer-Grade “A” on 06.08.1999 with the Appellant Corporation, as a Sales Officer/Assistant Manager (Consumer), Ahmedabad Divisional Office of the Appellant Corporation, responsible for carrying out function of consumer sales of Light Diesel Oil (“LDO”) in line’ with policies/rules/guidelines issued by the Petitioner from time to time. He was thereafter promoted from Grade “A” to Grade “B” in 2004. The respondent is currently serving with the appellant corporation as Chief Manager (institutional Business) (Grade “E”), Gujarat State Office. 6. In the instant case, Disciplinary Authority had already taken a decision on 29.06.2007 in respect of the respondent Shri Deepak Kapadia. He was thereafter promoted from Grade “A” to Grade “B” in 2004. The respondent is currently serving with the appellant corporation as Chief Manager (institutional Business) (Grade “E”), Gujarat State Office. 6. In the instant case, Disciplinary Authority had already taken a decision on 29.06.2007 in respect of the respondent Shri Deepak Kapadia. The time gap between Disciplinary Authority taking this decision and proceeding further is due to the want of the CVC’s 1st stage advise, which is a procedural requirement. Subsequently, departmental proceeding was initiated on 04.10.2012 after receipt of 1st stage advise from CVC. 7. The learned Single Judge in its order has already recorded that the respondent has not pressed for the first prayer of the petition pertaining to the punishment with liberty to file fresh petition and thereafter proceeded to consider case of the date of effect in promotion. The Court may consider contention of the learned Advocate for the appellant regarding non-consideration of the contention of delay raised by the appellant only on the ground that the appellant in its affidavit in reply before the learned Single Judge had not raised contention regarding delay in pleadings in the form of affidavit in reply. The Court has therefore permitted learned Advocate for the appellant to argue also on the ground of delay, for which it would be pertinent to record certain dates. 7.1 On 29.06.2007, the competent disciplinary authority passed order “tentatively” contemplating action against the respondent. The respondent was due for promotion from Grade-B to Grade-C in the year 2008. However, in view of order dated 29.06.2007, case of the respondent was put under sealed cover. In the year 2011, the appellant received first such advice from CVC as the same is essential for any further proceeding and thereafter on 04.10.2012, charge sheet came to be issued with 7 articles of charges. On 31.07.2013 Inquiry Officer submitted its report, wherein out of 7 charges, 2 charges were held to be proved, which was in the nature of (1) documents not verified and incorrect information was furnished and (2) failed to follow guidelines of distribution before release of LDO supplies. Accordingly, on 19.09.2014, final order of “Censure” was passed against the respondent, against which on 02.12.2014, the respondent filed departmental appeal against the order of penalty of “Censure” and on 17.05.2017, in the departmental appeal, final order dated 19.09.2014 came to be confirmed. Accordingly, on 19.09.2014, final order of “Censure” was passed against the respondent, against which on 02.12.2014, the respondent filed departmental appeal against the order of penalty of “Censure” and on 17.05.2017, in the departmental appeal, final order dated 19.09.2014 came to be confirmed. It is thereafter that 24.08.2017, SCA in the present case was filed. 8. In the opinion of the Court, the aforesaid chronology does not indicate any delay as it was prudent for the respondent to have waited for the final outcome of the departmental appeal before approaching this Court. Furthermore, considering the fact that tentative order of the disciplinary authority was passed on 29.06.2007 and charge sheet having been issued on 04.10.2012, in fact indicates delay on the part of the appellant itself. Nonetheless, perusal of the impugned order would indicate that learned Single Judge has not just considered arguments of delay merely on account that contention was not raised in the pleadings and therefore, argument of delay at the hands of the respondent to file writ petition before this Court cannot be accepted. 9. In case of Bhagwati Prasad (supra), in Para-9, it is held that mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The case before the Apex Court was on the consideration of two cross appeals between the landlord and the tenant. The context in which the Apex Court had dealt with the issue of plea not taken expressly, where party had asked for relied on clear and specific ground, but was not covered either directly or by necessary implication then such relief would not be open for the party to claim being plea which was entirely a new plea, whereas in the facts of the present case, the learned Single Judge has not only permitted plea to be raised but has also answered the same. 10. The other contention raised is with regard to use of word “tentative” in final order dated 29.06.2007. It is argued that when the disciplinary authority had decided to initiate regular departmental inquiry for major penalty, but was misconstrued by the learned Single Judge to be only tentative decision and cannot be treated final decision on the basis of which sealed cover procedure could have been adopted in case of the respondent. It is argued that when the disciplinary authority had decided to initiate regular departmental inquiry for major penalty, but was misconstrued by the learned Single Judge to be only tentative decision and cannot be treated final decision on the basis of which sealed cover procedure could have been adopted in case of the respondent. In this connection, it would be appropriate to reproduce the order as under: “ORDER Dated: 29.06.2007 I have perused the contents of the note no. IR/1461/W dated 08.06.2007 along with the letter no. VM-75/2006-HO/573 dated 23.03.2007 of CVO, CO and the report no. VM-75/2006-HO/R-27 dated 22.12.2006 in the matter of complaint regarding corruption of approx.300 Crores in supply of LDO from Gujarat Refinery, Baroda. On perusal of the papers placed before me, I find that there have been lapses on the part of Officials at various levels leading to high upliftment of LDO on concessional Sales tax by M/s. Sidhivinayak Re-rolling Mills and M/s. Baba Balaknath Steel Industries. Having applied my mind and after taking into consideration the facts and circumstances characterizing the case, I have tentatively decided to initiate Regular Disciplinary case for Major penalty against Shri Deepak Kapadia and Minor Penalty proceedings against S/Shri P.V.R. Satish, P.J. Trivedi, R.K. Gupta and Radha Nair. As regards Shri K.R. Vyas and Smt. Usha Vaghela, I have tentatively decided to caution them. The matter of allegations relating to Shri R Sareen and R.S. Sisodia may be placed before Chairman-the CDA, for his kind perusal and further orders please.” 11. The inter office memo dated 20.05.1992 provided for sealed cover procedure which would read as under: “Sealed Cover Procedure The following would be covered by the Sealed Cover Procedure (i.e. they would be considered for promotions but the grading awarded by the DPCs would be kept in a sealed cover till the disciplinary case/criminal prosecution is concluded. Employees: (i) who are suspended. (ii) against whom departmental enquiry or criminal proceeding is being conducted. (iii) in respect of whom either a charge-sheet has already been issued or a decision already taken by competent authority to issue a charge-sheet on specific imputations. (iv) in respect of whom sanction for prosecution has been issued or a decision in this regard taken. (ii) against whom departmental enquiry or criminal proceeding is being conducted. (iii) in respect of whom either a charge-sheet has already been issued or a decision already taken by competent authority to issue a charge-sheet on specific imputations. (iv) in respect of whom sanction for prosecution has been issued or a decision in this regard taken. It may again be clarified that if the competent authority has not arrived at a conclusion to issue a charge-sheet or to issue sanction for prosecution, the employee is to be treated on a par with other employees in the matter of promotion.” 12. As per the aforesaid, it is necessary for the disciplinary authority to take decision to issue charge sheet on “specific imputations.” The order reproduced hereinabove does not indicate any “specific imputation” about role of the respondent (emphasis supplied). Along with this, if OM dated 08.02.2012 is taken into consideration then at the time when charge sheet came to be issued, inter office memo dated 08.02.2012 provided as under: “Sub: Promotion Policy for Officers - Reg. Sealed Cover Procedure Divisions were conveyed vide our IOM Reference No. DP/4/12/5 dated 16-01-2012 about the guidelines for assessment of DPC regarding the cases that will be kept in a sealed cover. In Para 1 of the above referred IOM the provisions of DoPT’s OM dated 14-09-1992 were inadvertently quoted as below: (i) Government servants under suspension. (ii) Government servants in respect of whom disciplinary proceeding are pending or a decision has been taken to initiate disciplinary proceedings. (iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution. (iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any other agency, departmental or otherwise. We request Divisions to substitute the above provisions with the following as have been quoted in DoPT’s OM dated 14-09-1992: (i) Government servants under suspension. (ii) Government servants in respect of whom a Charge-sheet has been issued and disciplinary proceedings are pending. (iii) Government servants in respect of whom prosecution for a criminal charge is pending The other contents of the above referred IOM dated 16-01-2012 remain unchanged. Inconvenience caused is regretted.” 13. (ii) Government servants in respect of whom a Charge-sheet has been issued and disciplinary proceedings are pending. (iii) Government servants in respect of whom prosecution for a criminal charge is pending The other contents of the above referred IOM dated 16-01-2012 remain unchanged. Inconvenience caused is regretted.” 13. The prevailing inter office memo contemplates three contingencies as enumerated above, but in the case of the respondent, on facts, none of the aforesaid contingencies are existing so as to qualify the case of the respondent for adopting sealed cover procedure. That being so, from inception itself, according to this Court, no ground was prevailing to adopt sealed cover procedure in case of the respondent. 14. The learned Single Judge, while taking into consideration another office memo of the year 1992 relied upon by the learned Advocate for the appellant, justifying sealed cover procedure adopted, has referred to clause-III, which would read as under: “(iii) in respect of whom either a charge-sheet has already been issued or a decision already taken by competent authority to issue a charge-sheet on specific imputations.” 15. Therefore, requirement is of decision to issue charge sheet on specific imputation whereas order which was passed as tentative order, was considered by the learned Single Judge not to be the final decision of the disciplinary authority in this connection. The argument advanced by learned Senior Advocate for the appellant by relying upon the guidelines of CVC for importing word “tentative” from the said chapter, this Court is of the view that even if the provision of the Special Chapter on Vigilance Management in Public Sector Enterprises and the Role and Functions of the CVC, where clause-16.2 referred to the decision of the disciplinary authority to be tentative, would not override requirement of the aforementioned inter office memo, requiring the decision of the competent authority to issue charge sheet on “specific imputation.” 15.1 Coupled with the fact that tentative decision taken in the year 2007 and issuance of charge sheet after 6 years in the year 2012 and the punishment of censure would not encourage this Court to interfere with the reasonings given by the learned Single Judge. 16. In view of the aforesaid discussion, no interference is called for. The appeal therefore stands dismissed. 17. In view of the order passed in the main appeal, Civil Applications do not survive. Disposed of accordingly.