Retrospective promotion to be allowed in the absence of any pending prosecution against the employee: Delhi High Court

In matter pertaining to sealed cover procedure, withheld promotions can be allowed retrospectively after the proceedings are terminated. It was thus observed by V. Kameswar Rao J. of the Delhi High Court that sealed cover procedures are not limited to prospective promotions only. In the matter of Inderjeet Dabas v The District and Sessions Judge [W.P.(C) 13432/2018], it was seen that if any pending proceedings has been discharged against an employee, then he shall be liable for the promotion if he was being considered in the first place.

The petitioner was appointed as Lower Division Clerk in the Office of the District and Sessions Judge (HQs). While working on the post of Ahlmad, in the Court of the then learned Additional Sessions Judge, Patiala House Courts, New Delhi, he was charge sheeted for illegally supplying uncertified copies of an order dated July 28, 2009. The said charge sheet resulted in a penalty of stoppage of two increments without cumulative effects vide order dated September 02, 2014. On an appeal filed by the petitioner against the order of the penalty, the same was modified to the extent it was converted as withholding of one increment without cumulative effect vide order dated August 02, 2016. On August 23, 2017, an order was issued by the respondent promoting 838 Junior Judicial Assistants (LDCs) to the post of Judicial Assistants (UDCs) from different dates. The case of the respondent is that the petitioner had been given promotion to the post of Judicial Assistant w.e.f July 01, 2016 on the petitioner serving the penalty period.

The issue in this regard has to be seen from the perspective, whether on July 05, 2008, was there any impediment that would disentitle the petitioner, promotion as Judicial Assistant. In normal course, on issuance of a charge sheet, the recommendation of the DPC are kept in a sealed cover, but the promotion in this case being retrospective, the position as existing on July 05, 2008 needed to be seen.

It came to the bench’s view that the DoP&T had issued instructions with regard to the manner in which the cases of Officers, against whom disciplinary proceedings were pending, needed to be dealt with when they are due for promotion. One of the OM dated September 14, 1992, which contemplated that in the eventuality none of the three conditions testified in Para 2 of the OM exist then the DPC will assess the suitability of the Officer and promote him, if found fit; otherwise, the proceedings shall be kept in a sealed cover. None of the three conditions seemed to be attracted in the case of the petitioner inasmuch as, the petitioner was neither under suspension nor any departmental charge sheet was issued nor any prosecution for criminal charge was pending.

The bench while scrutinizing the aspect of sealed cover procedures referred to the judgement in Union of India vs. K.V. Jankiraman 1991 AIR 2010, wherein it was stated that if the allegations are serious and the authorities are keen in investigating them, it should not ordinarily take much time to collect the relevant evidence and finalize 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.

The court ruled that “The present petition is liable to be allowed and the petitioner shall be entitled to promotion to the post of Judicial Assistant w.e.f July 05, 2008 with all consequential benefits but with 50% back wages. The 50% back wages are for the reason that in 2009, a charge sheet was issued, which culminated in a penalty of stoppage of one increment without cumulative effect, unlike a case where the charges are not proved.”

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