TaxTMI 
TaxTMI 
2025 (1) TMI 1605
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal dated 14.02.2023, called for the drawing of a panel for the promotion from the post of Commandants to the rank of DIG for the vacancy year 2023. The petitioner was at Sl. No.13 of the gradation list of Commandant as of 01.01.2023, therefore, his name was also included in the said list. 3. Before the DPC could consider the case of the petitioner, an FIR under Section 13(2) read with Section 13(1)(e)(b) of the Prevention of Corruption Act, 1988 was lodged against the petitioner by the Central Bureau of Investigation (in short, 'CBI') on 16.03.2023. 4. The DPC was convened on 28.03.2023 and placed its recommendations with respect to the petitioner in a sealed cover. 5. Aggrieved of the same, the petitioner approached this Court by way of a Writ Petition, being W.P.(C). 15719/2023, titled Neeraj Kumar Pandey v. Union of India & Ors., claiming therein that the conditions for resorting to the sealed cover procedure had not been satisfied in the present case, as no departmental proceedings had been initiated against the petitioner, nor any charge-sheet in the criminal case filed, and the petitioner had also not been placed under suspension. 6. Taking note of the above subm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o make submissions on the challenge of the petitioner to the decision of the DPC. 12. Today, the learned counsel for the petitioner has placed reliance on the Office Memorandum No.22012/1/99-Estt (D) dated 25.11.2004, to submit that it is only in terms of the Office Memorandum dated 14.09.1992 and the Judgment of the Supreme Court in Union of India vs. K.V. Janakiraman (supra), and where the conditions mentioned therein are applicable, that the vigilance clearance for the candidates being considered for promotion can be withheld, and the DPC can be informed that a sealed cover procedure has to be followed for the candidates concerned. He submits that the underlying details of such cases should not be informed to the DPC, lest it would colour the judgment while considering the case of the candidates. 13. He submits that in the present case, the Vigilance Department had granted the vigilance clearance to the petitioner for being considered for promotion as none of the conditions mentioned in the OM dated 14.09.1992 had arisen. He submits that, therefore, the DPC could not have considered the underlying allegations against the petitioner that had formed the basis of the registra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....DIG, he be granted promotion with all consequential benefits on notional basis from the date his batchmates were granted the said promotion. We however make it clear that the petitioner will be entitled to the pay of a DIG only from the date he is actually promoted to the said post." 19. In compliance with the said order, the sealed cover of the petitioner was opened on 03.12.2024, and he was declared unfit for promotion. The DPC, in its recommendations, has observed as under: "2. As per DoP&T guidelines, the DPCs enjoy full discretion to devise their own methods and procedure for objective assessment of the suitability of candidates who are to be considered by them, including those officers on whom penalty has been imposed. 3. After going through the record of service of Shri Neeraj Kumar Pandey, Commandant (IRLA-4009), the DPC has observed that a FIR No. RC0062023A0008 dated 16/03/2023 has been registered by CBI, ACB Lucknow against him in connection with possession of assets of Rs.5,61,94,065/-, which is disproportionate to his known source of income. Therefore, considering general service record and grave nature of charge in above FIR, the DPC graded Shri Neeraj Kum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng within the purview of the circumstances mentioned in para 2 of the Office Memorandum, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. Therefore, it is made clear that only a bare statement that case of an employee in the zone of consideration/extended zone of consideration is covered by any of the three situations indicated in para-2 of the said Office Memorandum is to be furnished to the DPC to enable it to place its recommendations in the sealed cover. No other details about the pending inquiry or the nature of charges etc. are to be furnished to the DPC lest these details weigh with the DPC in making its recommendations, which are to be placed in the sealed cover. 2. Considerable doubts also persist about the furnishing of the vigilance clearance and integrity certificate to the DPC. It is clarified that the DPC is required to consider the cases of all persons who are otherwise eligible in terms of the Recruitment Rules as on the relevant crucial date and are in the zone of consideration. If, however, case of an employee in the zone of consideration is covered by any of the three situations, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. The Office Memorandum expressly prohibits the details about the pending inquiry or the nature of charges to be furnished to the DPC, lest these details weigh with the DPC in making its recommendations, which are to be placed in the sealed cover. 23. The reasons for the above instructions are not far to seek. In case the candidate is later found guilty in the disciplinary inquiry or in the criminal proceedings, the consequences thereof on the promotional aspect of such candidate shall follow in accordance with the law. However, if the candidate is exonerated in such departmental proceedings and/or criminal proceedings, such candidate cannot be denied promotion only on the ground that such departmental proceedings or criminal proceedings were pending against him. The case of the candidate is, therefore, to be considered remaining uninfluenced by the pendency of such departmental proceedings and/or the criminal proceedings. If the details of the departmental proceedings or the criminal proceedings are allowed to influence the decision of the DPC, it would amount to the DPC prejudging and punishing the candidate without any inquiry or opportunity of hearing; it would be a decisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....kes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any chargememo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Thos....