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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2537            OF 2013                (Arising out of S.L.P. (C) No.1933 of 2011)

The Union of India & Ors.           .... Appellant(s)

Versus

Anil Kumar Sarkar       ....  Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Delay condoned.

2) Leave granted.

3) This appeal is directed against the judgment and order  

dated  27.04.2010  passed  by  the  Gauhati  High  Court  at  

Gauhati  in  Writ  Petition (C)  No. 744 of 2010 whereby the  

Division Bench of the High Court  allowed the writ  petition  

filed by the respondent herein and set aside the order dated  

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21.08.2009 passed by the  Central  Administrative  Tribunal,  

Gauhati Bench, Gauhati in O.A. No. 251 of 2007.

4) Brief facts  

a) Anil  Kumar  Sarkar,  the  respondent  herein,  joined the  

Northern Railways as a Junior Clerk on 04.11.1977.  He was  

promoted  to  various  posts  and  while  he  was  working  as  

senior AFA/T-1 in the office of the Financial Adviser and Chief  

Accounts  Officer  of  Northeast  Frontier  (N.F.)  Railway  at  

Maligaon,  a Departmental Promotion Committee (DPC) was  

convened by the Union Public Service Commission (UPSC) on  

26.02.2002  and  27.02.2002  to  consider  eligible  Group  ‘B’  

officers  of the Accounts  Department  for  their  substantive  

promotion to Group ‘A’ (Jr. Scale) of Indian Railways Accounts  

Service  (IRAS)  against  the  vacancies  for  various  Zonal  

Railways/Production Units.  In the said DPC, the respondent’s  

name  was  also  considered  against  the  vacancies  in  N.F.  

Railway for the year 2001-2002 and accordingly, his name  

was placed in the extended select panel.   

b) It was alleged by the appellants herein that during the  

year 1994-95, while the respondent was working as Assistant  

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Accounts Officer in the Central Stores Accounts (Bills) in the  

office  of  the  Financial  Adviser  and  Chief  Accounts  Officer  

(Open  Line),  N.F.  Railway,  Maligaon,  he  committed  gross  

misconduct in the matter of checking and passing the bills of  

various firms involved in manufacturing and supplying of cast  

iron sleeper plates to N.F. Railways.  For the said acts, four  

memorandum of charges were issued to the respondent, out  

of  which  two  were  issued  on  13.08.2003  and  others  on  

01.09.2003  and  05.11.2003.   On  the  basis  of  the  said  

memorandums,  four  departmental  proceedings  were  

initiated  against  the  respondent  at  three  different  places,  

i.e.,  Delhi,  Kolkata  and Gauhati,  enquiries were completed  

and show cause notices were served.   

c) Based on the similar charges, in the year 2004, the CBI  

lodged 11 FIRs against  the respondent herein on different  

dates under Section 120B/420 of the Indian Penal Code, 1860  

and  Section  13(1)(d)  read  with  Section  13(2)  of  the  

Prevention of Corruption Act,  1988 and accordingly,  cases  

were registered against him.  Subsequently, 11 cases were  

amalgamated into 3 cases being numbered as Special Case  

Nos. 59/04, 60/04 and 62/04. According to the appellants, on  

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the basis of these charges, the respondent was not promoted  

to Group ‘A’ (Jr. Scale).  

d) By office order dated 21.04.2003, the batch mates of  

the  respondent  were  promoted.   Being  aggrieved,  the  

respondent  herein  filed  several  representations  to  the  

Department for consideration of his case for promotion which  

were duly rejected.  Challenging the non-consideration of his  

case for promotion, the respondent filed O.A. No. 251 of 2007  

before the Central Administrative Tribunal, Gauhati Bench for  

a direction to the appellants herein to promote him to Group  

‘A’  (Jr.  Scale)  of  IRAS  w.e.f.  05.03.2002  in  terms  of  the  

recommendations  of  the  DPC  held  on  26.02.2002  and  

27.02.2002 wherein his name was figured in the extended  

panel  list.   Vide  order  dated  21.08.2009,  the  Tribunal  

dismissed his application.   

e) Challenging the order of the Tribunal, the respondent  

herein filed a petition being W.P.(C) No. 744 of 2010 before  

the Gauhati High Court.  The High Court, by impugned order  

dated  27.04.2010,  allowed  the  petition  and  set  aside  the  

order  passed  by  the  Tribunal  and  directed  the  appellants  

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herein to issue appropriate order in favour of the respondent  

herein for promotion with all consequential benefits.

f) Challenging the said order, the Union of India has filed  

this appeal by way of special leave.

5) Heard  Mr.  Mohan  Jain,  learned  Additional  Solicitor  

General for the Union of India and Mr. Rakesh Kumar Singh,  

learned counsel for the respondent.

Contentions:

6) Mr. Mohan Jain, learned ASG, after taking us through the  

Office Memorandum dated 14.09.1992 issued by the Ministry  

of Personnel, Public Grievances and Pensions, Department of  

Personnel and Training, submitted that paragraph 2 of the  

said  memorandum  has  to  be  considered  along  with  

paragraph 7 of the same.  According to him, the High Court is  

not justified in considering paragraph 2 of the memorandum  

alone.   He  further  submitted  that  at  the  relevant  time,  4  

charge sheets were issued to the respondent and enquiries  

were completed and notices to show cause had already been  

served upon the respondent.  On the other hand, Mr. Rakesh  

Kumar Singh, learned counsel for the respondent submitted  

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that as on the date i.e. 21.04.2003, when his juniors were  

promoted, neither the respondent was under suspension nor  

any  charge  sheet  was  served  upon  him  and  he  was  not  

facing  any  criminal  prosecution,  hence,  there  was  no  

impediment in promoting him.   

7) We have carefully considered the rival submissions and  

all  the  relevant  materials  including  the  decision  of  the  

Tribunal and the impugned order of the High Court.

Discussion:

8) There  is  no  dispute  as  to  the  fact  that  the  Office  

Memorandum No. 22011/4/91-Estt(A), Government of India,  

Ministry  of  Personnel,  Public  Grievances  and  Pensions,  

Department  of  Personnel  &  Training,  New  Delhi  dated  

14.09.1992  is  applicable  to  the  case  on  hand.   In  fact,  

learned  ASG  appearing  for  the  appellants  and  learned  

counsel  for  the  respondent  heavily  relied  on  the  said  

memorandum.   The  relevant  paragraphs  for  our  present  

purpose are 2 and 7 which are reproduced hereunder:

“No. 22011/4/91-Estt(A) Government of India

Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training

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North Block, New Delhi-110001 Dated: 14.09.1992

OFFICE MEMORANDUM

Subject : Promotion  of  Government  servants  against  whom  disciplinary/court proceedings are pending or whose conduct is under  investigation.  Procedure and guidelines to be allowed.  

Board’s  L/No.  E(D&A)  88RG6-21 dt. 21.9.88 &  2.7.90

In  supersession  of  all  instructions  contained in Bd’s letters referred to in the  margin  on  the  above  subject,  the  procedure and guidelines laid down below  shall  be  followed  in  the  matter  of  promotion from Group ‘B’ to Group ‘A’ and  within  Group  ‘A’  of  Railway  Officers  against  whom  disciplinary/Court  proceedings are pending.

Cases of Govt. to whom  sealed cover procedure  will be applicable.

2.  At  the  time  of  consideration  of  the  cases of Govt. servants for empanelment  details  of  Govt.  servants  in  the  consideration  zone  for  promotion  falling  under the following categories should be  specifically  brought  to  the  notice  of  the  Departmental Promotion Committee:- (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.

Sealed cover procedure  applicable  to  officers  coming  under  cloud- holding  of  DPC  but  before promotion.

………..……………………………………………… ………………………………………………………. ……………………………………………………… 7.  A Govt. servant, who is recommended  for  promotion  by  the  Departmental  Promotion Committee  but  in  whose case  any  of  the  circumstances  mentioned  in  para  2  above  arise  after  the  recommendations of the DPC are received  but before he is actually promoted, will be  considered as if his case had been placed  

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in  a Sealed Cover by the DPC.  He shall  not  be  promoted  until  the  conclusion  of  disciplinary case/criminal proceedings and  the provisions contained in this letter will  be applicable in his case also.”

9) It is not in dispute that the respondent had joined the  

Northern Railways as a Junior Clerk on 04.11.1977, and got  

promoted time and again.  While he was working as a Group  

‘B’ Officer, his case was taken up for promotion to Group ‘A’  

(Junior Scale) of the Indian Railways Accounts Service (IRAS).  

It  is  also  not  in  dispute  that  in  the  meetings  of  the  DPC  

conducted on 26.02.2002 and 27.02.2002, the respondent’s  

name was considered and he was placed in the extended  

select panel.  It is further seen that up to 21.04.2003, the  

date on which the respondent’s batch mates were promoted  

to  IRAS,  neither  any  criminal  proceedings  was  initiated  

against him nor any departmental enquiry was initiated, nor  

any  charge  sheet  was  served  upon  him  and  nor  he  was  

placed  under  suspension.   Aggrieved  by  the  non-

consideration  of  his  representations  for  promotion,  the  

respondent  filed  O.A.  before  the  Central  Administrative  

Tribunal.   Learned  counsel  for  the  Railways,  by  placing  

reliance  on  the  Office  Memorandum  dated  14.09.1992,  

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contended before the Tribunal  that  a  Government  servant  

who is recommended for promotion by the DPC and in whose  

case  the  circumstances  mentioned  in  paragraph  2  are  in  

existence, he shall not be promoted.  Accepting the above  

stand of the Railways, the Tribunal rejected the petition filed  

by the respondent herein.

10) Aggrieved  by  the  said  decision  of  the  Tribunal,  the  

respondent  herein  filed  a  petition  before  the  High  Court,  

wherein,  the  said  memorandum,  particularly  paragraph  2,  

was pressed into service.  The High Court, taking note of the  

conditions prescribed in paragraph 2 and in the absence of  

any such condition as on the relevant date, i.e., 21.04.2003,  

set aside the order of the Tribunal and directed the Railways  

to consider the case of the respondent for promotion.

11) As per  paragraph 2 of the said memorandum, at  the  

time  of  consideration  of  the  Government  servants  for  

promotion, the following details of Government servants in  

the consideration zone for promotion falling in the categories  

mentioned should be specifically brought to the notice of the  

DPC, viz.,  (i)  Government  servant is  under  suspension;  (ii)  

Government servant has been served with  a charge sheet  

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and  the  disciplinary   proceedings  are  pending;  and  (iii)  

Government  servant  is  facing  prosecution  for  a  criminal  

charge  and the said proceedings are  pending. As rightly  

observed  by  the  High  Court,  if  the  above  conditions  are  

available, even one of them, then the DPC has to apply the  

‘sealed  cover  process’.   In  the  case  on hand,  it  is  not  in  

dispute  that  the  relevant  date  is  21.04.2003,  when  the  

respondent’s  batch  mates  were  promoted,  admittedly  on  

that  date  the  respondent  was  not  under  suspension,  no  

charge sheet was served upon him nor he was facing any  

criminal  prosecution.   In  such  circumstances,  in  terms  of  

paragraph 2 referred to above, the recommendation of the  

DPC has to be honored and there is no question of applying  

‘sealed cover process’.

12) Mr. Mohan Jain, learned ASG submitted that paragraph  

2  has  to  be  read  along  with  paragraph  7  of  the  office  

memorandum dated 14.09.1992.  We have already extracted  

paragraph 7 of the memorandum which makes it clear that a  

government servant, who is recommended for promotion by  

the DPC if any of the circumstances mentioned in para 2 of  

the said memorandum arises after the recommendations of  

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the DPC are received, but before he is actually promoted will  

be considered as  if  his  case  has been placed in  a  sealed  

cover  by  the  DPC.   After  extracting  para  2,  we  also  

highlighted the three conditions prescribed therein.  Though,  

learned ASG has mentioned that  four charge sheets  were  

issued to the respondent, enquires were completed and show  

cause notices had already been served on the respondent,  

on the relevant date,  namely, 21.04.2003, when his batch  

mates  were  promoted,  none  of  the  conditions  was  in  

existence in  the  case  of  the  respondent.   Admittedly,  the  

respondent was not placed under suspension, charge sheet  

had  been  issued  only  on  13.08.2003  i.e.  nearly  after  4  

months,  no  disciplinary  proceedings  were  initiated  or  

pending as on 21.04.2003.  In such circumstances, we are of  

the  view  that  the  High  Court  is  fully  justified  in  issuing  

direction based on para 2 of the memorandum. No doubt, the  

learned  ASG heavily  relied  on later  part  of  para  7  of  the  

memorandum which reads as under:

“He  shall  not  be  promoted  until  the  conclusion  of  disciplinary  case/criminal  proceedings and the provisions  contained in this letter will be applicable in his case also.”

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Inasmuch as none of the circumstances was in existence as  

on 21.04.2003, reliance placed on the later part of para 7  

cannot be accepted or even not applicable.  

13) It  is  not  in  dispute  that  an  identical  issue  was  

considered by this Court in Union of India and Others vs.  

K.V.Jankiraman  and  Others,  (1991)  4  SCC  109.   The  

common questions involved in all those matters were:

(1) What  is  the  date  from  which  it  can  be  said  that  

disciplinary/criminal  proceedings  are  pending  against  an  

employee? (2) What is the course to be adopted when the  

employee is held guilty in such proceedings if the guilt merits  

punishment  other  than that  of dismissal?  and (3)  To what  

benefits  an  employee  who  is  completely  or  partially  

exonerated is entitled to and from which date?.  Among the  

three questions, we are concerned about question No.1.  As  

per  the  rules  applicable,  the  “sealed  cover  procedure”  is  

adopted when an employee is due for promotion, increment  

etc.  but  disciplinary/criminal  proceedings  are  pending  

against him at the relevant time and hence, the findings of  

his entitlement to the benefit are kept in a sealed cover to be  

opened  after  the  proceedings  in  question  are  over.  

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Inasmuch as we are concerned about the first question, the  

dictum laid down by this Court relating to the said issue is as  

follows:-

“16. On the first question, viz., as to when for the purposes  of  the  sealed  cover  procedure  the  disciplinary/criminal  proceedings  can  be  said  to  have  commenced,  the  Full  Bench  of  the  Tribunal  has  held  that  it  is  only  when  a  charge-memo in  a  disciplinary  proceedings  or  a  charge- sheet in a criminal prosecution is issued to the employee  that  it  can  be  said  that  the  departmental  proceedings/criminal  prosecution  is  initiated  against  the  employee. The sealed cover procedure is to be resorted to  only  after  the  charge-memo/charge-sheet  is  issued.  The  pendency of preliminary investigation prior to that stage  will not be sufficient to enable the authorities to adopt the  sealed  cover  procedure.  We are  in  agreement  with  the  Tribunal  on  this  point.  The  contention  advanced  by  the  learned  counsel  for  the  appellant-authorities  that  when  there are serious allegations and it  takes 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  charge-memo/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.

   In para 17, this Court further held:

17. … The conclusion No. 1 should be read to mean that  the  promotion  etc.  cannot  be  withheld  merely  because  some  disciplinary/criminal  proceedings  are  pending  

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against the employee. To deny the said benefit, they must  be at the relevant time pending at the stage when charge- memo/charge-sheet  has  already  been  issued  to  the  employee….”

After finding so, in the light of the fact that no charge sheet  

was served on the respondent-employee when the DPC met  

to consider his promotion, yet  the sealed cover procedure  

was adopted.  In  such circumstances,  this Court held that  

“the Tribunal has rightly directed the authorities to open the   

sealed  cover  and  if  the  respondent  was  found  fit  for   

promotion by the DPC, to give him the promotion from the   

date of his immediate junior Shri M. Raja Rao was promoted   

pursuant to the order dated April 30, 1986.  The Tribunal has   

also directed the authorities to grant to the respondent all   

the consequential benefits…..We see no reason to interfere   

with this order.   The appeal,  therefore, stands dismissed.”  

The  principles  laid  down  with  reference  to  similar  office  

memorandum are applicable to the case on hand and the  

contrary argument raised by the appellant-Union of India is  

liable to be rejected.  

14) In  Coal  India  Limited  &  Ors. vs.  Saroj  Kumar  

Mishra, AIR 2007 SC 1706, this Court, in para 22, has held  

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that  a  departmental  proceeding  is  ordinarily  said  to  be  

initiated only when a charge-sheet is issued.  

15) In  Chairman-cum-Managing  Director,  Coal  India  

Limited and Others vs. Ananta Saha and Others, (2011)  

5 SCC 142, this Court held as under:

“27. There  can  be  no  quarrel  with  the  settled  legal  proposition  that  the  disciplinary  proceedings  commence  only  when  a  charge-sheet  is  issued  to  the  delinquent  employee. (Vide Union of India v.  K.V. Jankiraman, (1991)   4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6  SCC 694)”

We  also  reiterate  that  the  disciplinary  proceedings  

commence  only  when  a  charge  sheet  is  issued.  

Departmental proceeding is normally said to be initiated only  

when a charge sheet is issued.

16) Learned ASG, by drawing our attention to the decision  

of  this  Court  in  Union  of  India  and  Another vs.  R.S.  

Sharma,  (2000)  4  SCC  394  submitted  that  in  spite  of  

decision of this Court in Jankiraman’s case (supra) in view  

of para 7 of the office memorandum and in the light of the  

fact  that  proceedings  were  initiated  both  criminal  and  

departmentally,  the  High  Court  committed  an  error  by  

overlooking para 7 of sealed cover process and contended  

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that the direction issued by it cannot be sustained.  We have  

carefully gone through the factual position and the ultimate  

ratio  laid  down  by  this  Court  in  R.S.  Sharma’s  case  

(surpa).  Even though in the  said  decision,  this  Court  has  

distinguished the decision in  Jankiraman’s case (supra)  

and held that the same is not applicable to its case, in the  

light of the conditions mentioned in para 2 as well as para 7  

of  the  office  memorandum  dated  14.09.1992  and  of  the  

categorical  finding  that  none  of  the  conditions  mentioned  

therein  has  been  fulfilled,  we  are  of  the  view  that  the  

decision in R.S. Sharma’s case (supra) is not helpful to the  

case of the appellant.  

17) In  the  light  of  the  above  discussion  and  in  view  of  

factual position as highlighted in the earlier paras, we hold  

that the ratio laid down in Jankiraman’s case (supra) are  

fully  applicable  to   the  case  on  hand,  hence  we  are  in  

agreement  with  the   ultimate  decision  of  the  High  Court.  

Consequently, the appeal filed by the Union of India fails and  

the same is dismissed.  However, there will be no order as to  

costs.  

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...…………………………………J.   (P. SATHASIVAM)  

...…………………………………J.         (JAGDISH SINGH KHEHAR)  

NEW DELHI; MARCH 15, 2013.

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