K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment

Judgment:

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
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			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'appellant' => 'K.S. Meena',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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		'court' => 'Central Administrative Tribunal CAT Delhi',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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Dr. Ramesh Chandra Panda, Member (A):

1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant’s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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“(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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(ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;

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			'id' => '937868',
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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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(iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;

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			'id' => '937868',
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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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(iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;”

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant’s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant’s grievance of denial of higher pay scale and promotion, we may examine the case on merits.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant’s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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5. Shri Gupta’s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon’ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon’ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant’s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass “(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.

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			'id' => '937868',
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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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“(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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(ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

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			'id' => '937868',
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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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(iii) Government servants in respect of whom prosecution for a criminal charge is pending.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including ‘Unfit for Promotion’, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed ‘Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.’ The proceedings of the DPC need only contain the note ‘The findings are contained in the attached sealed cover’. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.”

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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11. The issue of sealed cover procedure to be adopted has been considered by the Hon’ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon’ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon’ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon’ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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“10. We have to interpret the expression ‘prosecution for a criminal charge is pending’. The emphasis is on the word ‘prosecution’ meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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“29. It is in the aforementioned context that interpretation of the word ‘prosecution’ assumes significance. The term ‘prosecution’ would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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30. “In initio’ means in the beginning. The dictionary meaning of ‘initiation’ is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.”

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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11. The Court had drawn distinction between the terms ‘prosecution’ and ‘cognizance’. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.”

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'favorof' => null,
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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12. In the background of the above judgment of the Hon’ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant’s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.

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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
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		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
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		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
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14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant’s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.

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	'title_for_layout' => 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | ',
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			'id' => '937868',
			'acts' => null,
			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
			'authreffered' => null,
			'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
			'casenote' => '',
			'caseanalysis' => null,
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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$title_for_layout = 'K S Meena Vs the Secretary Ministry of Home Affairs North Block New Delhi - Citation 937868 - Court Judgment | '
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	'Judgement' => array(
		'id' => '937868',
		'acts' => null,
		'appealno' => 'OA No.182 of 2011 ',
		'appellant' => 'K.S. Meena',
		'authreffered' => null,
		'casename' => 'K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2012-02-15',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'respondent' => 'The Secretary Ministry of Home Affairs, North Block, New Delhi',
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		'circuit' => null
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.

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			'id' => '937868',
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			'appealno' => 'OA No.182 of 2011 ',
			'appellant' => 'K.S. Meena',
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			'counselplain' => 'For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.',
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			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2012-02-15',
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			'judge' => 'V.K. BALI, CHAIRMAN &amp; THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)',
			'judgement' => '<p style="text-align: justify;">Dr. Ramesh Chandra Panda, Member (A):<p style="text-align: justify;"> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p style="text-align: justify;"> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p style="text-align: justify;"> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p style="text-align: justify;"> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p style="text-align: justify;"> OR ALTERNATIVELY</p><p style="text-align: justify;"> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p style="text-align: justify;"> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p style="text-align: justify;"> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p style="text-align: justify;"> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p style="text-align: justify;"> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p style="text-align: justify;"> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p style="text-align: justify;"> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p style="text-align: justify;"> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p style="text-align: justify;"> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p style="text-align: justify;"> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p style="text-align: justify;"> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p style="text-align: justify;"> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p style="text-align: justify;"> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p style="text-align: justify;"> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p style="text-align: justify;"> (i) Government servants under suspension;</p><p style="text-align: justify;"> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p style="text-align: justify;"> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p style="text-align: justify;"> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p style="text-align: justify;"> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p style="text-align: justify;"> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p style="text-align: justify;"> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p style="text-align: justify;"> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p style="text-align: justify;"> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p style="text-align: justify;"> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p style="text-align: justify;"> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p style="text-align: justify;"> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p style="text-align: justify;"> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p style="text-align: justify;"> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p style="text-align: justify;"> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p style="text-align: justify;"> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p style="text-align: justify;"> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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		'judgement' => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-</p><p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).</p><p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;</p><p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;</p><p> OR ALTERNATIVELY</p><p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;</p><p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;</p><p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.</p><p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.</p><p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.</p><p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.</p><p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.</p><p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.</p><p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?</p><p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.</p><p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-</p><p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.</p><p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.</p><p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-</p><p> (i) Government servants under suspension;</p><p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and</p><p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.</p><p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.</p><p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;</p><p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-</p><p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-</p><p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.</p><p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;</p><p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.</p><p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.</p><p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.</p><p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;</p><p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.</p><p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.</p><p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.</p><p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.</p>',
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	(int) 0 => '<p>Dr. Ramesh Chandra Panda, Member (A):<p> 1. The applicant is a confirmed DANICS Officer w.e.f. 01.07.1992. He on completion of four years w.e.f. 01.07.1996became eligible along with his batch officers to get time scale in the pay scale of Rs.8000-13500.Vide order dated 28.05.2002 (Annexure-A2), 51 of the DANICS Grade-II officers got the said pay scale w.e.f. 01.01.1996, 8 officers w.e.f. 01.07.1996, but the applicant was not allowed the said pay scale for which he submitted his representation dated 29.06.2001 (Annexure-A4). Further the respondents promoted officers of DANICS to Grade-I (selection grade) in the pay scale of Rs.10000-15200 vide order dated 17.04.2003 (Annexure-A5) but the applicant was not granted the said benefit. He represented to the respondent in his letter dated 03.09.2007 (Annexure-A6)and followed up with reminders on 17.10.2007 (Annexure-A8) and 01.09.2009 (Annexure-A9).It is noticed that due to minor penalty charge sheet and a criminal case where the sanction of prosecution against him was granted on 25.09.2000 for his alleged corrupt practice and the vigilance clearance was not given, his case was placed under sealed cover by the DPC to which the applicant submitted representation. Vide the charge dated 26.10.2004, the Trial Court handed over copy of the charge to the applicant in the criminal case. Thus, the disability in terms of DOPandT OM dated 14.09.1992 was available for the respondents to put the applicant&#8217;s case in sealed cover. The applicant submitted his representation dated 17.07.2007 followed up with reminders on 3.09.2007, 18.10.2007, 12.09.2009 and 29.09.2010. Ultimately, his representations were rejected vide the impugned letter dated 11.11.2010 on the ground that the order dated 27.10.2010 by which the punishment in relation to one minor penalty charge sheet dated 27.10.2010 (Annexure-A11) was inflicted on the applicant. Assailing the letter dated 11.11.2010, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-',
	(int) 1 => '<p> &#8220;(i) quash and set aside the communication dated 11.11.2010 (Annexure A-1).',
	(int) 2 => '<p> (ii) hold that the punishment order dated 27.10.2010 has nothing to do with the grant of time scale of Rs.8000-13500 and promotion to grade I (Selection Grade) of DANICS by virtue of order dated 17.04.2003;',
	(int) 3 => '<p> (iii) direct the respondent to grant the benefit of time scale of Rs.8000-13500 w.e.f. 01.11.1997 and also the benefit of promotion to Grade I (Selection Grade) in the scale of Rs.10000-15200 on ad hoc w.e.f. the date when the batch mates of the applicant were granted with all benefits;',
	(int) 4 => '<p> OR ALTERNATIVELY',
	(int) 5 => '<p> To direct the respondents to consider the case of the applicant for grant of ad hoc promotion in terms of para 5 and 5.1 of the OM dated 14.09.1992 and in case, the applicant is found fit he may be promoted w.e.f. the date when he became due i.e. after two years from the date of the DPC in which the case of the applicant was kept under sealed cover;',
	(int) 6 => '<p> (iv) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice;&#8221;',
	(int) 7 => '<p> 2. We heard Shri S. K. Gupta, learned counsel appearing for applicant and Shri R. V. Sinha along with Shri R. N. Singh, learned Senior Central Government Counsel representing the respondents.',
	(int) 8 => '<p> 3. At the outset, Shri R.V. Sinha, learned counsel for the respondents has raised the preliminary objection that the instant OA is barred by limitation and the applicant does not have fresh cause of action to file the OA. He submits that the repeated representations do not give fresh cause of action to the applicant. This above objection was repelled by Shri S.K. Gupta on the ground that impugned order was passed by the respondent only on 11.11.2010 whereby the applicant&#8217;s representation claiming promotion was not agreed to and the OA being filed on 12.01.2011, the same would not attract any limitation. In support of this contention, Shri Gupta laboriously argued to strengthen the claim of the applicant that the case would not attract limitation, as there would be fresh cause of action every time the Government denied the promotion and higher pay scale and the respondent was duty bound to undertake review of the sealed cover of the applicant. Though, there seems to be a prima facie case that the OA may be barred by limitation, but considering the applicant&#8217;s grievance of denial of higher pay scale and promotion, we may examine the case on merits.',
	(int) 9 => '<p> 4. Shri S.K. Gupta, learned counsel for the applicant would submit that the applicant&#8217;s main claim was to get the time scale of Rs.8000-13500 along with his batch mates who were ordered to get the same w.e.f. 1996 vide order of 2001 and the second claim is to get the promotion to the Grade-I of DANICS as he has been denied whereas his colleagues and juniors have been promoted. His main argument is that as on 01.07.1996, the applicant was eligible and was not facing any departmental charges or charges in any criminal proceedings nor he was under suspension. As such he should have been granted the time scale of pay of Rs.8000-13500 w.e.f. 01.07.1996.',
	(int) 10 => '<p> 5. Shri Gupta&#8217;s second limb of contention was that the recommendations of the DPC in DANICS in the pay scale of Rs.10000-15200 was put in sealed cover and as the applicant was not facing any departmental or criminal charge and was not under suspension, his case could not have been put in the sealed cover as per the paragraph 4 of DOPandT OM dated 14.09.1992.In this context he places his reliance on the judgment of this Tribunal in case of B.S. Bhola, IPS Versus Union of Indiaand Ors. (OA No.1919/2009 decided on 11.08.2009) wherein the Tribunal cited the judgment of Hon&#8217;ble Supreme Court in case of Union of India and Others Versus K.V. Jankiraman and Others[JT-1991-3-SC-527] wherein the Hon&#8217;ble Supreme Court has observed that a criminal case would be considered to be pending against a Government servant only after the framing of charge by the Court and the disciplinary proceedings would be considered to have been initiated only after the charge sheet was issued. Shri Gupta would submit that the charges were not pending in the criminal proceedings and as such the applicant was entitled to get his promotion to the selection grade of DANICS. He, therefore, urges that the applicant being clear from all the angles should be granted not only his time scale of pay but also his promotion w.e.f. the date his juniors have been granted.',
	(int) 11 => '<p> 6. The respondents on receipt of the notice from the Tribunal have entered appearance and have filed the reply affidavit on 21.4.2011 and through the MA No.2796/2011 have amended to a very limited extent certain paras of the counter reply.',
	(int) 12 => '<p> 7. Shri R.V. Sinha, learned Sr.Central Government Standing Counsel appearing on behalf of the respondents would submit that the applicant was facing a criminal case and when his opportunity came for placement in the time scale of pay of Rs.8000-13500 along with other officers on 24.4.2001, he could not be placed in the higher scale in view of the fact that prosecution was already sanctioned against him on 25.01.2000for his involvement in a criminal case where he was alleged to have been involved in corrupt practices and the vigilance clearance and integrity clearance could not be issued in his favour. Referring to the applicant&#8217;s promotion to the selection grade in the DANICS in the pay scale of Rs.10000-15200, Shri Sinha would contend that the recommendation of the DPC in respect of the applicant was properly kept in the sealed cover as the DPC convened by the Union Public Service Commission (UPSC) on 15.02.2005 was informed that the applicant was facing criminal case where the prosecution had been sanctioned. It was stated that in 2003 ad hoc promotions in the selection grade was granted and subsequently they were regularised as per the recommendations of the DPC but the applicant was imposed a minor penalty of reduction to lower stage in the time scale of pay and was having the criminal charge against him, as a result of which the DPC put its recommendations in the sealed cover in respect of the applicant. The said procedure, Shri R.V. Sinha, contends, conforms to the guidelines issued by the DOPandT in OM dated 14.09.1992. He, therefore, submits that the application being devoid of merits should be dismissed.',
	(int) 13 => '<p> 8. Having heard the contentions of the rival parties with their assistance we perused the pleadings. Controversy for our determination is in narrow compass&nbsp; &#8220;(i) whether the sealed cover procedure adopted by the DPC to put its recommendations on the applicant for promotion to the selection grade of DANICS is legally sustainable or not and (ii) whether the applicant should have been granted time scale of pay on completion of four years along with his batch mates w.e.f. 01.07.1996?',
	(int) 14 => '<p> 9. We may consider the first issue i.e. whether sealed cover procedure adopted by the DPC in respect of the applicant for promotion to the selection grade of DANICS is legally sustainable or not? In this context, the admitted fact is that applicant was facing criminal proceeding RC No.33(A)/97-CBI/ACB-DLI for the alleged offences u/s 120-B IPC read with Section 468/420/511 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and prosecution was sanctioned on 25.09.2000. Challan had been filed before the Trial Court and the charges were framed by the Special Judge, Delhi on 26.10.2004.The DPC met on 15.02.2005 to consider the case of applicant along with others for promotion to the selection grade of DANICS. His case of promotion was placed in the sealed cover. Though ad hoc promotion was granted earlier and the DPC for the same met in the year 2003, his promotion case on adhoc basis was put in sealed cover.',
	(int) 15 => '<p> 10. In the background of the above admitted facts, we may refer to the relevant Government instructions in the subject. The DOPandT OM dated 14.09.1992 indicates the following procedure to be adopted in putting the recommendation of the DPC in respect of the officials facing criminal charges or departmental proceeding or under suspension as the case may be and the said provision reads as follows :-',
	(int) 16 => '<p> &#8220;(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.',
	(int) 17 => '<p> The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in super session of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.',
	(int) 18 => '<p> 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-',
	(int) 19 => '<p> (i) Government servants under suspension;',
	(int) 20 => '<p> (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and',
	(int) 21 => '<p> (iii) Government servants in respect of whom prosecution for a criminal charge is pending.',
	(int) 22 => '<p> 2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC, including &#8216;Unfit for Promotion&#8217;, and the grading awarded by it will be kept in a sealed cover. The cover will be super scribed &#8216;Findings regarding suitability for promotion to the grade/post of - in respect of Shri-(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri-.&#8217; The proceedings of the DPC need only contain the note &#8216;The findings are contained in the attached sealed cover&#8217;. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.',
	(int) 23 => '<p> 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.&#8221;',
	(int) 24 => '<p> 11. The issue of sealed cover procedure to be adopted has been considered by the Hon&#8217;ble High Court of Delhi in a recent judgment in batch of two Writ Petitioner (WP(C) No.3793/2011 and WP(C) No.1470/2011 decided on 02.12.2011) where the main issue for consideration was whether the petitioner had right to keep the result of DPC in a sealed cover in view of the fact that investigation in a criminal case against the respondent had been complete and the Challan had been filed before the Criminal Court and the matter was at that stage of a framing of the charge. After referring to the judgments of Hon&#8217;ble Supreme Court in Union of India Versus K.V. Janakiraman [AIR-1991-SC-2010] and discussing the issue decided by this Tribunal in the case of B.S. Bhola, IPS Versus Union of India and Others (OA No.1999/2009 decided on 11.08.2009) and the judgment of a Division Bench of the Hon&#8217;ble High Court of Delhi in Union of India Versus Om Prakash(WP(C) No.7810/2010) the Hon&#8217;ble High Court differed with the views of the Tribunal and decided the matter setting aside the judgment of this Tribunal in both the Writ Petitions (Union of India Versus Inspector Jawahar Lal and Others and Union of India Versus Binod Sahi) in following terms :-',
	(int) 25 => '<p> &#8220;10. We have to interpret the expression &#8216;prosecution for a criminal charge is pending&#8217;. The emphasis is on the word &#8216;prosecution&#8217; meaning thereby that the prosecution should be pending and it should be in respect of a criminal charge. To attract this clause, a criminal charge is necessary framed by the concerned Court. The question is when the prosecution would be said to be pending. No doubt, by mere sanctioning of the prosecution, it was not be pending, at the same time once, the FIR is lodged and the matter is under investigation, the prosecution would be treated as pending. This is so held by the Supreme court in State, CBI Vs. Sashi Balasubramanian and another, (2006) 13 SCC 2520 in the following words :-',
	(int) 26 => '<p> &#8220;29. It is in the aforementioned context that interpretation of the word &#8216;prosecution&#8217; assumes significance. The term &#8216;prosecution&#8217; would include institution of commencement of a criminal proceeding. It may include also not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.',
	(int) 27 => '<p> 30. &#8220;In initio&#8217; means in the beginning. The dictionary meaning of &#8216;initiation&#8217; is cause of begin. Whereas some statutes provide for grant of sanction before a prosecutions initiated, some others postulate grant of sanction before a congnizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.&#8221;',
	(int) 28 => '<p> 11. The Court had drawn distinction between the terms &#8216;prosecution&#8217; and &#8216;cognizance&#8217;. Congnizance comes even at a stage later than prosecution when after the challan/chargesheet is filed and the court takes cognizance thereof and issues notice to the accused. Section 173 of the Code of Criminal Procedure deals with the report of the police office on completion of investigation which has to be forwarded to a Magistrate empowered to take cognizance of the offence on the above police report. The format of the said police report is known as charge sheet which is filed before the Magistrate and it is only after going through the above charge sheet, the Magistrate takes cognizance and summons the accused. In the present case, even cognizance has been taken by the Court and the matter is at the stage of framing of the charge. Therefore, prosecution is definitely pending in respect of a criminal charge. It is thus clear that clause (iii) gets attracted.',
	(int) 29 => '<p> 12. The matter can be looked into from other angle namely the purpose behind such a clause. Obviously, the purpose behind inserting the aforesaid clause is that when the criminal proceedings have been initiated, the result of DPC should be kept in a sealed cover as the investigation is complete and investigating agency has filed the chargesheet in the Court, obviously, as per the prosecution case against the delinquent for criminal trial has been made out. It is a matter of common knowledge that framing of charge by the Court at times substantially delayed for one reason or the other. Had the matter been at an FIR stage and investigation in the process, situation perhaps may have been different but would not so when the investigation is complete and even the chargesheet is filed in the competent court. Obviously, with the filing of the chargesheet, it can safely be said that the Officer has come under a cloud before promotion.',
	(int) 30 => '<p> 13. If one goes into the historical facts leading to the issuance of the aforesaid OM, the original can be traced to the historic judgment of Apex Court in Union of Inida Vs. K.V. Jankiraman, AIR 1991 SC 2010.The court in that case expressed its concern. While take note of the OM contained in 30.1.1982 as that the situation was that Union of India could not denied the promotion or years together even on account of preliminary investigation continuing endlessly and when no departmental action was initiated either or chargesheet before the competent court filed. In such a situation, the Court find equities in favour of the Government servant. This led to the amendment in the O.M.dated 12th January, 1988 was issued and this was also superseded by OM dated 14th September, 1992. Once the equities are to be balanced and where situation are different denying promotion to the Government servant without any reasons, at the same time, public interest is also to be kept in mind while balancing the equities. With the filing of the charge sheet, the task of the investigating agency had been completed. If there is a delay happening there which could be for various reasons including the reason that can be attributed to the accused, public interest should not suffered as with the filing of chargesheet the Government servant has come under cloud. If such a situation is allowed, any such Government servant who is due for promotion can prolonged the framing of charge by the Court of law and in the meantime get his case considered by the DPC. It cannot be countenanced. A Single Bench of this Court had dealt with the similar issue in R.S. Srivastava v. Managing Director and Acting Chairman, GIC, 1999(5) SLR 714.IN this case , this Court relying on Union of India v. K.V. Janakiraman, 1991 (5) SLR 602 (SC), in para 5 of the judgment held that the designated court had not framed charge and in para 6, this Court held that there isa criminal case pending against the petitioner. It has further been held that when the petitioner is acquitted by the criminal court, he will get all the benefits and till such time, the petitioner cannot be head to say that the decision of the DPC in a sealed cover should be given effect to. We agree with this view.',
	(int) 31 => '<p> 14. We are, therefore, of the opinion that when the chargesheet is filed, in the court of law, it should be treated that prosecution for a criminal charge against such a person is pending. Clause 2(iii) of OM dated 14th September, 1992 would be thus attracted.&#8221;',
	(int) 32 => '<p> 12. In the background of the above judgment of the Hon&#8217;ble High Court of Delhi, when the facts of the present case are considered, we find that the applicant was not only facing the criminal proceedings but the prosecution was already sanctioned against him as far back as on 25.09.200 and admittedly investigation was complete and the Challan was filed before the Trial Court. At the time DPC met for ad-hoc promotion, sanction of prosecution and the completion of investigation was existing, and by the time regular DPC was conducted the Trial Court had already framed charges. Thus, the applicant&#8217;s claim that his case should not have been put in the sealed cover, is not, therefore, legally tenable as per the above judgment of Hon'ble High Court of Delhi.',
	(int) 33 => '<p> 13. We may now advert to the second issue : whether the applicant was entitled to the time scale of pay of Rs.8000-13500/- w.e.f. 01.07.1997 or 01.07.1997?.It is admitted fact that the applicant was not only facing the criminal charge but was also facing the departmental proceeding when the time scale sanction order was issued to his batch mates. Order dated 28.5.2001 was issued sanctioning time scale of pay (Rs.8000-13500) w.e.f. 1996/1997.But on 25.9.2000, prosecution was sanctioned against him in the criminal case. Hence, rightly the applicant was not found fit to be granted his time scale of pay, as no vigilance clearance and integrity clearance was granted to him for the said purpose. The applicant fails in this issue also.',
	(int) 34 => '<p> 14. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the respondents have appropriately put the applicant&#8217;s case for promotion to the selection grade of DANICS in the sealed cover denying him grant of time scale of pay of Rs.8000-13500 due to him. The applicant has not made out a case in his favour.',
	(int) 35 => '<p> 15. Finding no merits in the case, we dismiss the OA, however, leaving the respective parties to meet their own costs.',
	(int) 36 => ''
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Court	Central Administrative Tribunal CAT Delhi
Decided On	Feb-15-2012
Case Number	OA No.182 of 2011
Judge	V.K. BALI, CHAIRMAN & THE HONOURABLE MR. RAMESH CHANDRA PANDA, MEMBER (A)
Appellant	K.S. Meena
Respondent	The Secretary Ministry of Home Affairs, North Block, New Delhi
Advocates:	For the Applicant: S.K. Gupta, Advocate. For the Respondents: R.V. Sinha, R.N. Singh, Advocates.

K.S. Meena Vs. the Secretary Ministry of Home Affairs, North Block, New Delhi - Court Judgment