1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
2. By this petition, the petitioner is seeking declaration that “sealed cover procedure” adopted by the respondent No.1 thereby withheld the result of DPC held on 16.08.2024 is wrong, arbitrary and unconstitutional and also direction to the respondent No.1 to declare the result of the DPC. He further prays that the refusal to grant No Objection Certificate (NOC) for applying the other establishment be declared arbitrary and illegal.
3. The petitioner joined the service with the respondent no.1 Mineral Exploration and Consultancy Limited as Senior Manager IT (Grade E/5) and since then he is in continuous employment of respondent No.1. As per his contention, he rendered blemishless service. Due to certain matrimonial disputes, cropped up between him and his wife, his wife lodged a report against the petitioner vide Crime No.60/2021 at Jamshedpur on 04.10.2021 under Sections 498-A, 323, 506, 504 of the Indian Penal Code (hereinafter referred to as “IPC”). After investigation, the charge-sheet came to be filed on 30.09.2022 against the petitioner. Accordingly, Criminal Case No.256/2022 is pending against him in the Court of the Additional Chief Judicial Magistrate, Jamshedpur. Except this Criminal Case, he is not involved in any other case or prosecuted and has not faced any departmental enquiry.
4. As per the promotion policy of the respondent No.1, he was due for promotion within three years of his employment, as DGM (Grade E-6) in July 2023. However, due to some reasons, the promotion process was deferred to 2024. On 16.08.2024, the petitioner attended the DPC interview for the promotion of E-5 to E-6. At the relevant time, his colleagues, namely, Girish Aswani and Karthik Ramchandran also attended the said DPC interview and got promoted to the Grade of E-6. Therefore, he inquired with the General Manager (HR) of the respondent No.1 through e-office communication on 21.05.2025. It was informed to him on 22.05.2025 that the Vigilance clearance was not granted to him in the DPC 2024, and therefore, his result of DPC kept in a sealed cover as per the promotion policy. It was further informed to him that, as per the record available with the Vigilance Division a charge-sheet has been filed in the Court against him in a criminal offence and they sought the present status of the criminal proceeding, which shows that charge-sheet was filed and case is pending.
5. As his promotion process was withheld, therefore, on 26.05.2025, he requested to the respondent No.1 to apply for outside job in the Institute of Company Secretaries of India (ICSI), but till 12.06.2025, no such NOC was issued by the respondent No.1 assigning reason that the Vigilance clearance is awaited. The petitioner was also interested for deputation to the Center for Development of Advance Computing (CDAC) and in pursuance of the Advertisement No.Corp/GR.A/02/2025, he duly filled the application form and put a note in e-office on 09.09.2025, thereby requested the respondent No.1 to consider his application for deputation to CDAC. In response to the above communication, the Senior Manager (HR) of the respondent No.1 informed that the Vigilance clearance certificate for the previous year was not granted by the Vigilance section, however, the process for obtaining the current Vigilance clearance has been initiated through the portal on 10.06.2026. The petitioner in response further requested to forward his application to CDAC from the respondent No.1 on or before 15.06.2025, but his application was not forwarded for want of the Vigilance clearance. Thus, it is the grievance of the petitioner that though he is eligible for the promotion as a DGM his DPC result was withheld merely because there was matrimonial dispute pending as well as his request for out place job, his deputation was not considered and his request for deputation for CDAC was also not considered and, therefore, he approached this Court.
6. Heard learned counsel for the petitioner. He reiterated the said contentions and submitted that the DPC result of the present petitioner was withheld only because one matrimonial case was pending against him. He submitted that in view of the catena of decisions, the promotion cannot be withheld merely because some disciplinary / criminal proceedings are pending against the employee. To deny the said benefit, it must be at the relevant time pending at the stage when charge-memo/ charge-sheet has already been issued to the employee. He submitted that cases were “sealed cover procedure” applicable when the Government servants under suspension, Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings, Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution, or Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any agency, departmental or otherwise. He submitted that the proceeding which is pending against the present petitioner is matrimonial in nature. He has also disclosed the pendency of criminal case which is matrimonial in nature. A perusal of the FIR indicate that general allegations are levelled against him regarding the ill-treatment at his hands to his wife, therefore, the pendency of criminal case based on general allegations arising out of matrimonial dispute does not constitute a valid ground to deny promotion to the present petitioner.
7. The said petition is strongly opposed by the respondent Nos.1 and 2 on the ground that the petitioner’s service record stands affected by pending Criminal Case No.60/2021 under Sections 498-A, 323, 506 and 504 of IPC. The Court also ordered maintenance deductions from his salary. He has filed multiple unauthorized applications for outside employment without prior NOC and, therefore, the procedure adopted by the respondent Nos.1 and 2 is legal, and no interference is called for.
8. Heard learned Counsel Mr. D. M. Kale for respondent No.1 and learned counsel Mr. Dhumane for respondent No.2, who reiterated the above said contentions.
9. The issue involved in the present petition is whether respondent Nos.1 and 2 can withheld the DPC result and promotion of the present petitioner merely because there was one criminal complaint pending against him, which is matrimonial in nature. Before addressing the issue involved, it is necessary to see what is the law laid down by the Hon’ble Apex Court on this issue. In the case of Union of India (UOI) and Ors Vs. Anil Kumar Sarkar reported in MANU/SC/0240/2013, the Hon’ble Apex Court observed that “applicability of sealed cover procedure is applicable only when a charge-memo in a disciplinary proceedings or charge-sheet in criminal prosecution was issued to employee then it could be said that departmental proceedings/criminal prosecution was initiated against employee.” It is held that “Pendency of disciplinary/criminal proceedings will not be sufficient to enable authorities to adopt sealed cover procedure or withhold promotion.” By referring its earlier decision in the case of Union of India and Ors. Vs. K. V. Jankiraman and Ors., MANU/SC/0445/1991, wherein the Apex Court observed as under:
“(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?. Among the three questions, we are concerned about question No.1. As per the rules applicable, the “sealed cover procedure” is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:-”
“16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.”
In para 17, this Court further held:
“17. … The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee….”
10. In the case of Union of India and Ors. Vs. K. V. Jankiraman and Ors. (supra), wherein it is further held that departmental or criminal proceedings initiates against employee when charge-memo issued. If charges are serious employee can be suspended that if found innocent entitles him to all benefits which he would have otherwise entitled to.
11. In the case of Union of India (UOI) and Ors. vs. Sangram Keshari Nayak reported in MANU/SC/7342/2007, wherein it is held that promotion is not fundamental right. But right to be considered for promotion is fundamental right. Such right brings within its purview an effective, purposeful and meaningful consideration. In the above said decision also the judgment of the Apex Court in the case of Union of India and Another vs. R.S. Sharma reported in MANU/SC/0293/2000 was relied upon which reads as under:
“Cases where 'Sealed Cover Procedure' applicable - 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:
(i) government servants under suspension;
(ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) government servants in respect of whom prosecution for a criminal charge is pending or a sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by CBI or any agency, departmental or otherwise."
12. The Hon’ble Apex Court in the case of Avtar Singh vs. Union of India, reported in (2016) 8 SCC 471, while considering the issue of pending criminal cases at the stage of recruitment, laid down guidelines in paragraph 38, which is as under:
“38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted :
38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
13. In the case of Avtar Singh vs. Union of India (supra) while referring to Commissioner of Police Vs. Sandeep Kumar, has observed in paragraphs No.8 and 9 that youthful indiscretions and minor offences ought not to result in branding a person as a criminal for life, and that the approach should be reformative rather than punitive. The Court illustrated this principle by referring to the character “Jean Valjean” from Victor Hugo’s novel Les Miserables, emphasizing that minor infractions particularly those arising from personal or family circumstances, deserve to be condoned rather than resulting in lifelong adverse consequences.
14. Applying the aforesaid principles to the facts of the present case, undisputedly the petitioner joined the service with respondent No.1 as Senior Manager IT (Grand E/5) and he was due for promotion in July 2023. He has attended the DPC interview for promotion of E-5 to E-6 on 16.08.2024. However, his DPC result was withheld and kept in sealed cover as one crime was registered against him on the basis of report lodged by his wife under Sections 498-A and 323 of IPC vide Crime No.60/2021. In the said crime, the charge-sheet bearing 87/2022 was filed on 30.09.2022. Thus, there is no dispute as to the fact that prior to the DPC, charge-sheet was filed against him in connection with Crime No.60/2021. His further grievance is that his applications for outside job as well as deputation for CDAC was also not considered by the respondent No.1. The promotion policy is kept on record which gives guiding principles for the promotion policy. The Clause No.5.5 of the said promotion policy of year 2013 and amended subsequently and was in existence till 15.03.2024 shows that which is reproduced as under:
“5.5. The promotions from E-3 to E-4, E-4 to E-5, E-5 to E-6 and E-6 to E-7 shall be on merit-cum-seniority basis. Promotions from E-3 to the cluster of E-4 and E-5 and from E-5 to E-6 and E-6 to E-7 shall be subject to availability of these vacancies. The number of executives to be considered for promotion, in case of promotions where the promotions are vacancy based, shall not exceed five times the number of available vacancy (ies).”
15. The Clause No.6.0 of the said policy deals with performances appraisal system. Clause No.6.1 to 6.3 are reproduced as under:
“6.1. The DPC shall consider the Performance Appraisal Reports for the preceding five years from the date of consideration of promotion.
6.2 In the case of direct appointees in E-1 scale under Engineering trainees/Officer Trainees Schemes, where five PARs may not be available the DPC shall take into consideration only two available PARs for the preceding years to aggregate the marks required as per para 13.4.
6.3 Performance Appraisal Report for any period less than four months in an appraisal year shall not be taken into consideration for the purpose of promotion. However, where two or more reports are written in any appraisal year by reason of any executive having been posted under two different officers, the appraisal report for the longer duration shall be taken into account.”
16. Clause 7.1 discloses “All promotions shall be approved by the Chairman-cum-Managing Director only on the recommendations of a duly constituted Departmental Promotion Committee (DPC). The composition of the DPC will be as under and will be approved by CMD for undertaking promotion activities every year.”
17. For promotion E-6 and E-7 posts following would be the DPC :-
(1) CMD as Chairman
(2) D(F) as Member
(3) D(T) as Member
(4) GM (HR) as Member Secretary
(5) Other Member – As per statutory Requirements
(6) External Expert (optional); CMD may invite/co-opt external experts from Senior Officers of CPSEs / Government Organizations, or Retired Senior Officers with professional eminence.
18. The Clause 17.0 of the said policy deals with promotion of executives who are under suspension or against whom departmental proceedings are pending (“Sealed Cover Procedure”) which states that “at the time of consideration of the cases of Executives for promotion details of Executives in the consideration zone for promotion falling under the following categories shall be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Executives under suspension;
(ii) Executives in respective of whom a charge-sheet has been issued and the disciplinary proceedings are pending, and;
(iii) Executives in respect of whom prosecution for a criminal charge is pending.”
19. The Clause 17.2 states that “The Departmental Promotion Committee shall assess the suitability of the Executives coming within the purview of the circumstances mentioned in para No.17.1 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 superscribed “Findings regarding suitability for promotion to the grade / post of in respect of Shri (name of the Executive). 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.”
20. Clause 17.3, which is reproduced as under:
“The same procedure outlined in para 17.2 will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case / criminal prosecution against the Executives concerned is concluded.”
21. The Clause 17.6 deals with six monthly review of “sealed cover” cases, which is reproduced as under:
“It is necessary to ensure that the disciplinary case / criminal prosecution instituted against any Executive is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of an Executive in a sealed cover is limited to the barest minimum. The Appointing Authority concerned, therefore, should review comprehensively the case of the Executive whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of six months from the date of convening the first Departmental Promotion Committee, which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter-alia, cover the progress made in the disciplinary proceedings / criminal prosecution and further measures should be taken to expedite their completion.”
22. The Clause 17.12 states that “The Executive, who is recommended for promotion by the departmental promotion committee but in whose case any of the circumstances mentioned in para 17.1 arise after the recommendations of the DPC are received, but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions stated above will be applicable in his case also.” Admittedly, in the present case, no departmental action is initiated against the present petitioner and no charge-memo or charge-sheet is issued to the present petitioner.
23. The core question for consideration is whether merely because filing of the charge-sheet, due to the matrimonial dispute, it could be said that the petitioner is not entitled for any promotion. At this stage, it is pertinent to note that the Ministry of Personnel, Government of India vide OM dated 2nd November, 2012 issued certain clarifications regarding the stage when a prosecution for criminal charge can be said to be pending, keeping in view the dicta laid down in K. V. Jankiraman referred supra. Para Nos.6 and 8 of OM dated 2nd November, 2012 states as under:
“When a government servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in departmental proceedings and or prosecution of criminal charges followed by either penal/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge-sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued or the officer is placed under suspension. The pendency of preliminary investigation prior to that stage is not adopt the sealed cover procedure.”
24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge-memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The said guidelines of 2012 again revised on 09.10.2024.
25. The Hon’ble Apex Court in the case of K. V. Jankiraman referred supra which was followed in every subsequent judgment on this issue clearly states that if the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
26. In the light of the above settled law and considering the submissions made by the learned counsel for the petitioner, it reveals that the petitioner is facing criminal prosecution for the offence punishable under Sections 498-A and 323 of IPC, on the basis of a report made by his wife. Apparently, this is a case of matrimonial i.e. personal dispute between the petitioner and his wife. It is difficult to hold that such offence can be termed as offence relating to moral turpitude, which may have an impact on the entitlement of the petitioner to promote on the promotional post. Admittedly, there is no allegation against the present petitioner of any misconduct during his service tenure. There is no allegation either of corruption, misappropriation or which would attract the allegation of moral turpitude against him. Admittedly, the matrimonial dispute will take its own time to resolve. Merely on the basis of one matrimonial dispute is pending against the petitioner would not be sufficient to deprive him from getting a promotional post.
27. The Hon’ble Apex Court in the case of Union of India (UOI) and Ors Vs. Anil Kumar Sarkar referred supra specifically held that “pendency of disciplinary / criminal proceedings will not be sufficient to enable authorities to adopt sealed cover procedure or with whole promotion.” In view of the observation of the Hon’ble Apex Court in the above said judgment, in the present case also, in view of the factual position as highlighted above, we hold that the ratio laid down in Jankiraman’s case (supra) and in the case of Union of India (UOI) and Ors Vs. Anil Kumar Sarkar (supra) are fully applicable to the case in hand. Hence, we hold that the procedure adopted by the respondent No.1 keeping the result of DPC dated 16.08.2024 of petitioner in “sealed cover procedure” is wrong, illegal and liable to be set aside. Hence, we proceed to pass following order:
ORDER
(i) Writ Petition is allowed.
(ii) We declared that “sealed cover procedure” adopted by respondent No.1 thereby withholding the result of DPC held on 16.08.2024 is wrong, arbitrary and liable to be quashed and set aside.
(iii) We also direct the respondent No.1 to declare the result of DPC held on 16.08.2024 and decide the issue of promotion of the present petitioner.
28. Rule is made absolute in the above said terms.
