Sealed cover procedure

Withholding of promotion of a Government servant pending disciplinary or criminal proceedings as per sealed cover procedure is valid. Issue discussed in all its aspects.

These cases have been posted before the full bench of the Central Administrative Tribunal, Hyderabad Bench for resolving the conflict of opinion among the various High Courts on the question whether the pendency of disciplinary or criminal proceedings would justify withholding of promotion, refusing of higher pay scales, crossing of efficiency bar and the like. The Tribunal considered the decisions of the various courts including the Supreme Court and the instructions of the Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms issued on 30-1-82. The cases relate to Government servants governed by the Central Civil Services (CCA) Rules, 1965 and the All India Services (Discipline and Appeal) Rules, 1969.

The Tribunal observed that though promotion is not a matter of right, the Government servant is entitled to be considered for promotion as per the rules which govern his service and nonconsideration for promotion on the sole ground of pendency of the disciplinary or criminal proceedings has been held uniformly by courts to offend Arts. 14 and 16 of Constitution. Therefore, notwithstanding the pendency of the departmental or criminal proceedings against a Government servant, he is to be considered for promotion along with other eligible persons is by now well established. The instructions issued by the Government of India already recognise the right of an employee to be considered for promotion as per rules along with others, if he is duly qualified for the higher post. It is only on that basis, the sealed cover procedure has been suggested.

The question for consideration is as to whether the Government employee who is considered fit for promotion and selected can be denied promotion merely on the ground that the departmental proceedings are pending against him. As per the sealed cover procedure an employee is to be considered by the Departmental Promotion Committee along with others for promotion, notwithstanding the pendency of the disciplinary proceedings and if he gets selected, his result will be kept in a sealed cover until the conclusion of those proceedings.

The Tribunal considered the contention of the applicants that the sealed cover procedure contemplated by the instructions is void and inoperative as it runs counter to rule 11(ii) of the Central Civil Services (CCA) Rules, 1965. It is urged on behalf of the applicants that withholding of promotion having been treated as penalty under rule 11(ii), the executive instructions cannot authorise withholding of promotion pending departmental inquiry and to the extent the instructions authorise the same on certain conditions, they are invalid as being contrary to the statutory rules. The Tribunal observed that it is by now well established that the executive instructions issued by the Government can fill up the gaps in the statutory rules framed under Art. 309 of Constitution, though any such instructions can only supplement and cannot run counter to the same. The statutory rules only provide that withholding of promotion can be resorted to by way of punishment. The rules do not say that the withholding of promotion cannot be resorted to for other valid reasons and they are silent. It is to provide for such a contingency, the sealed cover procedure has been thought of and executive instructions had been issued in that regard. On a due consideration of the matter, the Tribunal took the view that it is open to the Government to adopt the sealed cover procedure provided the interest of the official concerned is sufficiently and fully safeguarded in the event of his being ultimately exonerated in the departmental proceedings. In issuing the instructions embodying the sealed cover procedure, the provisions of the Central Civil Services (CCA) Rules, 1965 are not violated in any sense. There is no conflict between rule 11(ii) and the instructions. As pointed out by the Supreme Court in High Court of Calcutta vs.

Amal Kumar Roy (AIR 1962 SC 1704) withholding of promotion for any other reason except by way of punishment cannot be taken to be a penalty as contemplated by rule 11(ii). Almost all the decisions of the Andhra Pradesh High Court proceeded on the basis that withholding of promotion is a penalty under rule 11(ii), that such a penalty can be imposed only after the conclusion of the departmental proceedings and not when the enquiry is pending and that therefore withholding of promotion while disciplinary proceedings are pending cannot legally be justified. The Tribunal held that this view cannot be accepted in view of the observations of the Supreme Court referred to above and in the context of the sealed cover procedure.

The Tribunal observed that the Explanation (iii) to rule 11 makes it clear that non-promotion after consideration of the official’s claim for promotion for other reasons cannot be treated as a penalty. Considering the views expressed on both sides, the Tribunal held that explanation (iii) carves out from the main provision, non-promotion after consideration for special reasons. It is no doubt true, explanation (iii) does not say in what circumstances non-promotion after consideration will fall thereunder. It is only for the purpose of filling in the gap or to give full scope to explanation (iii), the instructions have been issued by the Ministry providing for the sealed cover procedure. So long as the instructions providing for a sealed cover procedure do not conflict with the statutory rules, the procedure can be fully operative. The Supreme Court has in the case of Shiv Singh vs. Union of India (AIR 1973 SC 962) upheld the departmental instructions for withholding of promotion in respect of a person who took part in an illegal strike without initiating any disciplinary action. On a similar reasoning in the matter of promotion if a person is under a cloud i.e. person against whom disciplinary proceedings are pending, promotion can be deferred by following the sealed cover procedure.

The Tribunal observed that there are two conflicting concepts, one, a right to be considered for promotion is a right flowing from the conditions of service and once an employee is found fit for promotion, his promotion cannot arbitrarily be withheld and a junior promoted instead in the face of Arts. 14 and 16 of Constitution. On the other hand, the purity of public service requires that a person under a cloud i.e. person against whom disciplinary or criminal proceedings had been initiated and are pending, should get himself absolved of the charges before he is actually promoted. It will be against public interest if any employee who is being proceeded against say on a charge of corruption were to be promoted while facing the corruption charges. It is only to keep a proper balance between these two concepts, instructions have been issued from time to time to adopt the sealed cover procedure which is intended to protect the interest of the employee in the matter of promotion and also to advance the public interest and to sustain purity of public service. The Tribunal held that the sealed cover procedure is to be followed only when proceedings are initiated i.e. when a charge-sheet is filed in a criminal court or charge memo under the C.C.A. Rules is served on the official.

The Tribunal held that not giving arrears of salary i.e. the salary for the period during which promotion was withheld which he would have drawn if the promotion had not been withheld, is a clear violation of Arts. 14 and 16 when compared with other employees against whom disciplinary proceedings had not been initiated. They struck down the portion of para 2 of the instructions dated 30-1-82 which says, “but no arrears are allowed in respect of the period prior to the date of actual promotion”, and directed that on exoneration, the salary, which the person concerned would have received on promotion if he had not been subjected to disciplinary proceedings, should be paid along with the other benefits.

The Tribunal held, that similarly, the provision that in the event of the official being given a penalty at the conclusion of the disciplinary proceedings the results of the sealed cover should not be given affect to or acted upon is open to attack on the ground that the official having already been punished with a penalty, not giving affect to the findings in the sealed cover will amount to a double penalty and this will not only violate Arts. 14 and 16 when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them but also offend the rule against double jeopardy contained in Art. 20(2) of Constitution. The Tribunal struck down that portion of paragraph 3(iii) second sub-para which says, “if penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the finding in the sealed cover shall not be acted upon”, and directed that if the proceedings end in a penalty, the person concerned should be considered for promotion in a review Departmental Promotion Committee as on the original date in the light of the results of the sealed cover as also the imposition of penalty and his claim for promotion cannot be deferred for the subsequent Departmental Promotion Committees as provided in the instructions.