HARSH KUMAR SHARMA, IFSversusSTATE OF PUNJAB & ANR.

                          (2016] 9 S.C.R. 495



                  HARSH KUMAR SHARMA, IFS                                   A
                                v..
                     STATE OF PUNJAB & ANR.
                (Civil Appeal Nos. 11231-11232of2016)
                         DECEMBER 14, 2016.                                 8
      [A.K. SIKRI AND ABBAY MANOHAR SAPRE, JJ.]
        Service Law - Promotion - Result of promotion order - Kept
 in sealed cover by DPC - In view of criminal case against the
 appellant-employee (which was registered on direction of High Court
 in a Public Interest Litigation in respect of construction ofgolf course   c
 in a forest area) - Original application by the employee seeking
 opening of sealed cover and giving effect thereto - Administrative
 Tribunal allowed the application - High Court set aside the order
 of the Tribunal - On appeal, held: As per the Office Memorandums,
 the employee in respect of whom prosecution for criminal charge is         D
 pending, his assessment for promotion has to be kept in a sealed
 cover and is not to be given effect to - In the present case charge-
 sheet was filed before the meeting of DPC was held - Therefore,
 there is no fault in the action of resorting to sealed cover procedure
 - However, as per the Office Memorandum every sealed cover has
 to be reviewed in three months and no sealed cover can be operative        E
 after two years - In the present case no review has been done -
 Moreover, the persons involved in the main case (Public Interest
 Litigation) stand discharged and the public servants involved therein
 also stand promoted - Therefore, the appellant-employee could have
 been given ad-hoc promotion - Respondents are directed to consider
                                                                            F
 the appellant for ad-hoc promotion.
       Disposing of the appeals, the Court
        HELD: 1.1 As per Office Memorandum dated 14.9.1992, .
. the employee in respect of whom charge-sheet has been issued
  and the disciplinary proceedings are pending or in respect of G
  whom prosecution for criminal charge is pending, his assessment
  is to be kept in a sealed cover and is not to be given effect to.
  Sealed cover procedure is to be resorted to only after the charge
  memo/charge-sheet is issued. If the charge-sheet is filed in a
  criminal court, sealed cover procedure can be resorted to. The
                                                                    H
                                 495
496           SUPREME COURT REPORTS                     [2016) 9 S.C.R.


A     position contained in O.M. dated 14.09.1992 in respect of sealed
      cover procedure has been repeated in subsequent office
      memoranda. Vide O.M. dated 02.11.2012, the Ministry of
      Personnel, Government of India had issued certain clarification.
      In para 7, it is clarified that even after recommendation of the
      DPC, but before appointment of the officer, if any of the three
 B
      situations arise i.e. (1) investigation, (2) prosecution and (3)
      conviction or acquittal, the case is deemed ti> be kept in sealed
      cover by virtue of para 7 of O.M. dated 14.09.1992.This O.M.
      further clarifies that criminal charge would be treated as pending
      in the case of criminal proceedings, on the date on which the
 c    complaint or a report of police officer, on which Magistrate takes
      cognizance, is made. It, thus, makes it clear that the date on
      which report of police is made would be the relevant date. [Paras
      14, 16, 17, 20, 21, 22][504-A; 505-D-E; 506-E; 507-B, F-G; 508-
      A-B]
 D           1.2 In the present case, charge-sheet was filed by the CBI,
      after completion of the investigation, on 09.12.2008 and the
      meeting of the DPC was held thereafter i.e. on 29.03.2011. It is
      correct to say that the date of reckoning should be the date on
      which the vacancy occurred and not the date on which the DPC
      was held. Therefore, move on the part of the DPC to resort to
 E    the sealed cover procedure is justified. [Paras 18, 19, 20)[506-
      G-H; 507-A-BJ
             Union of India and others v. KV. Jankiraman and others
             1991 (3) SCR 790: 1991(4) SCC 109; Union of India
             and another v. R.S. Sharma, 2000 (3) SCR 151 : 2000
 F           (4) SCC 394; Arindam Chattopadhyay and others v.
             State of West Bengal and others 2013 (4) SCC 152.
             P. Grover v. State of Haryana 1983 (3) SCR 654 : 1983
             (4) sec 291 - referred to
             2.1 However, the appellant had rightly contended that every
 G    sealed cover has to be reviewed in three months and no sealed
      cover can be operative after two years, as per appended
      Government of India's instructions. In any case sealed cover
      had to be opened in the absence of any such review undertaken
      by the respondents. [Para 12)[503-D-EJ
            2.2 O.M. dated 14.09.1992 as well as other O.Ms. impress
 H
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 497


the necessity of ensuring that the disciplinary case/criminal A
prosecution instituted against any Government servant is not
unduly prolonged and all efforts to finalise expeditiously the
proceedings should be taken so that the need for keeping the
case of a Government servant in a scaled cover is limited to the
barest minimum. It is further provided that the appointing B
authorities should review comprehensively the cases of
Government servants, whose suitability for promotion to a higher
grade has been kept in a sealed cover. Such review should be
undertaken on the expiry of 6 months from the date of convening
the first DPC which had adjudged the suitability and kept the
findings in sealed cover. This review is also to be done c
subsequently as well, after every six months. It is also mandated
that the review should, inter alia, cover the progress made in the
disciplinary proceedings/criminal prosecution and further
 measures be taken to expedite the completion.[Para 24][508-C-
F]
                                                                     D
      2.3 Para 5 of the O.M. dated 14.09.199,2 takes into
consideration the situation where such proceedings arc not
concluded even after the expiry of 2 years and impresses upon
the appointing authorities to consider the desirability of giving
promotion to such Government servants keeping in view certain
aspects: (a) whether the promotion of the officer will be against E
the public interest; (b) whether the charges arc grave enough to
warrant continued denial of promotion; (c) whether there is any
likelihood of the case coming to a conclusion in the near future;
(d) whether the delay in the finalisation of proceedings,
departmental or in a court of law, is not directly or indirectly F
 attributable to the Government servant concerned; and (e)
whether there is any likelihood of misuse of official position which
 the Government servant may occupy after ad-hoc promotion,
 which may adversely affect the conduct of the departmental case/
 criminal prosecution. [Para 24][508-F-H; 509-A-B]
                                                                      G
       2.4 In the instant case, no review, after every six months
 has been done. This was more so when after examining the case
 of the appellant, at one point of time, view was to even withdraw
 the sanction and drop the prosecution. Even when the Central
  Government repeatedly asked the State Government to do so,
  the State Government kept on dragging its feet.[Para H
498            SUPREME COURT REPORTS                         [2016) 9 S.C.R.


A     25)(509-B-D)
             2.5 There are other significant developments insofar as
      issue of golf course in a forest area is concerned, it is almost
      dead now. The persons involved in the said main case stand
      discharged. Even the public servants involved therein stand
B     promoted. In view thereof, the Government should have
      considered the desirability of giving the appellant ad-hoc
      promotion when primafacie none of the circumstances mentioned
      in para 5 of O.M. dated 14.09.1992 appear to exist.[Para 25)(509-
      E-F]
             2.6 The respondents are directed to consider the case of
 C    the appellant for ad-hoc promotion keeping in view the
      circumstances of this case including the developments after the
      judgment of the High Court.[Para 26][509-C]
                              Case Law Reference
             1991 (3) SCR 790                   relied on         Para 11
D
             2000 (3) SCR 151                   relied on         Para 19
             2013 (4) SCC 152                   relied on         Para 19
             1983 (3) SCR 654                   referred to       Para 21
             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. l l 23 l-
 E     l 1232of20l6.
             From the Judgment and Order dated 05.05.2014 of the High Court
      of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 1681
      CATof2014.
                                       WITH
 F           Conmt. Pet. (C) Nos. 788-789 of 2016 in SLP (c) No. 24338-
      24339 of2014.
             Harsh Kumar Sharma, Petitioner-in-person.
             V. Madhukar, Sanchar Anand, AA Gs., Sushi! Kumar Jain, Sr. Adv.,
      P. K. Dey, Shailender Saini, M. K. Maroria, Bharat Singh, Raj Bahadur,
 G    Arvind Kumar Sharma, Shreekant N. Terdal, Ms. Anvita Gowshish,
      Apoorv Singhal, Raj iv Singhal, Kuldip Singh, Advs., for the Respondents.
             The Judgment of the Court was delivered by
            A.K. SIKRI, J. I. In these appeals, challenge is laid by the
      appellant to the judgment dated 05.05.2014 of the High Court vide which
 H    writ petition of the respondent/State of Punjab is allowed and order of
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 499
                [A. K. SIKRI, J.l

the Central Administrative Tribunal (CAT) has been set aside. The A
appellant herein had filed Original Application under Section 19 of the
Administrative Tribunals Act, 1985 before the Chandigarh Bench of the
CAT for certain reliefs. The result of the Departmental Promotional
Committee (DPC), after considering the case of the appellant for
promotion, has been kept in a sealed cover by the DPC. Main relief B
sought for by the appellant was for opening of the sealed cover and
giving effect thereto, with other consequential reliefs. The Tribunal had
allowed the OA of the appellant thereby granting the said prayer. The
High Court has, vide impugned judgment, reversed the orderofthe CAT.
       2. It may be stated at this stage that the appellant is facing criminal
prosecution under the provisions of Prevention of Corruption Act, 1988 C
(for short 'PC Act'). The issue, therefore, resolves around these criminal
proceedings, namely, whether that could form the basis of keeping the
result of the DPC in sealed cover. According to the appellant, having
regard to the guide) ines for resorting to the sealed cover procedure,
stage was not ripe for this purpose as, as on the date on which the DPC D
was held, there was neither any chargesheet against the appellant nor
any charges framed in the criminal case. The respondents claimed
otherwise as, according to them, matter had already been entrusted to
CBI for carrying out the investigation into the allegations of acts of
corruption on the part of the appellant and even the investigation was
complete and report under Section 173 of the Code of Criminal Procedure, E
1973 (Cr.P.C.) had been submitted by the CBI to the competent court.
Since the report under Section 173 of the Cr.P.C. was filed before the
first meeting of the DPC which was held, it was argued that the sealed
cover procedure had been rightly adopted.
      3. Few facts which are relevant in order to appreciate the rival        F
contentions and decide the issue need a mention at this stage. We,
therefore, proceed to take note of those facts.
       4. The appel!antjoined Indian Forest Service in the year 1985 and
after undergoing the requisite training, he was allocated to Punjab cadre.
He was given senior scale on 01.04.1989 and was promoted to the rank
                                                                              0
of Conservator of Forests vide order dated 15.03.2001, but from ari
anterior date. While working in that capacity, the appellant was directed
to hold an inquiry into the running of Golf Course in reserved forest area,
which was being run by Forest Hill Resort whose owner was one Lt.
Col. (Retd.) B.S. Sandhu. The appellant conducted the said inquiry,
namely, whether it was a forest land or not and on other issues which         H
500             SUPREME COURT REPORTS                             [2016] 9 S.C.R.



A     were referred to him.
              5. In a public interest litigation bearing CWP No. 1134 of2004
      titled 'Court on its own motion v. Col. B.S. Sandhu and others', the
      High Court of Punjab and Haryana passed an order for demolition of the
      said Golf Course after finding that it was constructed in the reserved
B     forest area. At the same time, the matter was also entrusted to the CBI
      with a direction to fix accountability. The High Court had adversely
      commented upon the conduct of the appellant as well observing that
      while inquiring into the matter which was entrusted to him, he had
      submitted two dramatically opposed reports inasmuch as in the first report,
      the wrong-doers were indicted, whereas in the second report, the appellant
C     had exonerated them. Jn pursuance of these directions, FIR was lodged
      by the CBI on 07 .04.2006 in which the appellant was also arrayed. The
      CBI conducted the investigation and as per its report, certain Forest
      Officers and one I.A.S. Officer entered into a criminal conspiracy with
      Lt. Col. (Retd.) B.S. Sandhu and his associate Raj iv Bajaj thereby causing
D     undue favour to Sandhu who, taking advantage of the same, developed
      and established Forest Hill Resort in violation of various provisions of
      Indian Forest Act, 1927, Punjab Land Preservation Act, 1900 and various
      other Acts. It is significant to mention that the appellant does not figure
      in the list ofthose Forest Officers who had allegedly colluded with Sandhu.
      Against him, the allegation is of submitting two contradictory reports
 E    thereby trying to shield the said wrong-doers.
             6. The events which are relevant for the purposes of this case
      from, the stage of filing of the FIR till the filing of the chargesheet in the
      Court and the holdii1g ofDPC, are as under:

 F           07.04.2006        CB l filed the FIR.
             05.07.2006        The appellant moves the case for
                               quashing of FIR.
             10.08.2006         Government of India delists this land
                                from the categol)' of forests.
G
             17.08.2006         State Govermmnt admits that the above
                                said lands were erroneously recorded as
                                forests.
             27.10.2006         111e appellant moves quashing petition
                                vide number 4543 7 M of2006.
H
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR.                          501
                [A. K. SIKRl, J.]

                                                                           A
27 .11.2006        The appellant moves application for the
                   amendment of quashing petition 73577 of
                   2006, which is allowed.
22.02.2007         The appellant gets non functional grade in
                   the pay scale of Chief Conservator of Forests
                   (C CF) after scrutiny of records in 2011 from
                   the back date.                                          B
14.07 .2008        The appellant files a case of defamation
                   against Shri R.K. Bajaj in the JMIC Court
                   and case of civil defamation before the Civil
                   Judge. Shri R.K. Bajaj on being summoned
                   on oath gives an affidavit that the appellant
                   never demanded any bribe. He is further                 c
                   charged by the court for the crime.
16 .04 .2 0 09     Petition of the appellant for quashing of the
                   FIR dismissed by the High Court.
12.01 .2012        Challenging the aforesaid order of the High
                   Court, appellant filed SLP (Criminal) No.
                   7647 of 2009 which is still pending in this             D
                   Court.
             It may be mentioned that during the pendency of this
      petition, Government oflndia initially took the view that the
      sanction to prosecute the appellant be withdrawn and letters
      were written to the State Government to this effect. Without
      stating in detail the events in this behalf, suffice is to mention    E
      that recently decision is taken in consolidation with the State
      Government not to withdraw the sanction. In SLP (Criminal)
      No. 7647 of2009, directions are given by this Court on
      22.11.2006 to the Central Government to produce the
      relevant records to show the circumstances necessitating              F
      the change of opinion.
29.03.2011          Post of Chief Conservator Forest became
                    available on the retirement of one Mr.
                    Swaran Singh. The appellant was eligible
                    to be considered for promotion against the
                    said post, as per his seniority.
                                                                            G
09.12.2008          Report under Section            1 73   of   C r.P.C.
                    submitted by CB I.
29.03.2011          Meeting of DPC held wherein the case of
                    the appellant for the post of Chief
                    Conservator Officer was considered and the
                    result is kept in the sealed cover.                    H
502            SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A            7. Feeling aggrieved by the adoption of sealed cover procedure,
      the appellant filed OA No.549 of2013 in CAT, which has been allowed
      by the CAT on 11.11.2013. Againstthatjudgment, State of Punjab filed
      writ petition in the High Court, which was allowed by the High Court
      vide impugned judgment dated 05.05.2014 thereby setting aside the order
      of the CAT. The appellant preferred review petition seeking review of
B
      the order dated 05.05.2014, which stood dismissed on 10.07.2014, leading
      to the filing of the special leave petitions by the appellant out of which
      the present appeals arise for our decision.
           8. The appellant, who appeared in-person, drew our attention to
      some of the subsequent events which may be noticed at this stage.
c
         9. To recapitulate, FIR No. RC CHG 2006AOO13 was registered
  against the appellant and two !AS Officers and one IFS Officer on the
  direction of the Punjab and Haryana High Court in Public Interest
  Litigation bearing CWP No. 1134 of2004. The main issue was that Lt.
  Col. (Retd.) Sandhu had constructed a golf course in the reserved forest
D area. However, the said order of the High Court was set aside by this
  Court and the Court remanded the case back to the High Court. The
  High Court has now given the findings that 40 per cent of the lands
  owned by Col. Sandhu, who had made the golf course, was agricultural
  land. The demarcation was going on. Meanwhile, the Government of
E India and the State Government have de listed the area from the category
  of forests. It is, therefore, no longer the forest area.
          10. On the basis of the aforesaid development, the appellant
  submitted that the CBI case registered against two IAS and two IFS·
  Officers for golf course in the so-called forest area could not proceed.
F The Court of Special Judge, CBI refused to take cognizance against the
  appellant because of the stay of the trial by the High Court as the appellant
  had approached the High Court for quashing of the proceedings against
  him. However, this Court has passed the order that the High Court had
  to first determine whether the area in question is forest or not. Since it
  is no more considered a forest area, nothing survives. On merits, it is
G submitted that the State has accepted the fact that the vacancy for
  promotion arose on 30.09.2008 and prosecution sanction was given on
  16.12.2008 by Government ofJndia in the present case. So, on the date
  of the availability of the vacancy, no prosecution sanction/prosecution
  was pending against the appellant. It is further argued that the DPC
H ignored the Government of India's instructions that without issuing
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 503
                rA. K. SIKRI, J.l
chargesheet, no promotion can be stopped. It further promoted two IFS         A
Officers, viz. Mr. Dhirender Singh and Mr. H.S. Gujral, who are/were
facing prosecution in the court oflaw. Rather, two IAS Officers involved
in the present case, viz. Mr. S.C. Aggarwal and Mr. K.B.S. Sidhu, were
promoted .. Example of one Mandip Singh, IAS of Punjab cadre is also
given stating that he was promoted in spite of the fact he was under          B
departmental chargesheet and his prosecution in the court was in progress
wherein charges were framed against him.
       11. The appellant has placed strong reliance on Union of India
and others v. K. V. Jankimman and others 1 wherein it is held that till
the time chargesheet is issued by the Department or the Court framed
charges in the criminal case, promotion cannot be stopped. Many other         C
cases, where ratio of K. V. Jankiraman 's case is reiterated, are also
referred to by the appellant.
       12. It is also argued by the appellant that as per Government of
India's instructions issued in the years 1992, 2000, 2001, 2003, 2004,
2012 and 2014, no case can be kept in a sealed cover without D
chargesheeting the employee or court framing the charges. Moreover,
every sealed cover has to be reviewed in three months and no sealed
cover can be operative after two years, as per appended Government of
India's instructions. It is, thus, argued that in any case sealed cover had
to be opened in the absence of any such review undertaken by the E
respondents.
       13. Learned counsel for the respondents, on the other hand,
supported the reasons given by the High Court in the impugned judgment
and submitted that the subsequent developments are of no consequence
inasmuch as the fate of the appellant's case does not depend upon the         F
issue as to whether the area in question, where golf club was constructed,
was forest area or not. It was pointed out that the allegations against
the appellant are altogether different, namely, when he was asked to
inquire into the matter, he gave two conflicting and diametrically opposite
reports and in the second report which was given by the appellant, in
favour of Col. Sandhu, undue favour was shown to him. He further              G
submitted that the sealed cover procedure could be adopted when the
DPC meeting was held at a time when the chargesheet had already
been submitted.

1
    (1991)4sec109
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504            SUPREME COURT REPORTS                             [2016] 9 S.C.R.



A            14. Office Memorandum dated 14.09.1992 lays down the
      circumstances under which the assessment done by the DPC is to be
      kept in the sealed cover. Three such circumstances which are given are
      stipulated in para 2 of the said O.M., which reads as under:
             "2. At the time of consideration of the cases of Government
B            servant for promotion details of Government servant in the
             consideration zone for promotion falling under the following
             category should be specifically brought to the notice of the
             Departmental Promotion Committee.
             (i) Government servants under suspension.
c       ,'   (ii) Government servants in respect of whom a chargesheet
             has been issued and the disciplinary proceedings are pending;
             and
             (iii) Government servants in respect of whom prosecution
             for criminal charge is pending.
D
             2.1 The Departmental Promotion Committee shall assess
             the suitability of 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
 E           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 Government servant). Not to be
             opened till the terminator of the disciplinary case/criminal
 F
             prosecution against Shri ........ .'. The proceeding 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
 G           when the findings of the DPC in respect of the suitability of
             a Government servant for his promotion are kept in a sealed
             cover.
             2.2 The same procedure outlined in para 2.1 above will be
             followed by the subsequent Departmental Promotion
 H
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 505
                [A. K. SIKRI, J.]

      Committee convened till the disciplinary case/criminal                  A
      prosecution against the Government servant concerned is
      concluded."
       15. It would also be fruitful to quote para 7 of the O.M., which
reads as under: • -
      "7. A Government servant, who is recommended for                        B
      promotion by the Departmental Promotion Committee but
      in whose case any of the circumstances mentioned in para
      2 above arise after the recommendations of the DPC are
      received but before he is actually promoted, will be
      considered as if his case had been placed in a sealed cover             c
      by the DPC. He shall not be promoted until he is completely
      exonerated of the charges against him and the provisions           .·
      contained in this O.M. will be applicable in his case also."
       16. The employee in respect of whom chargesheet has been issued
and the disciplinary proceedings are pending or in respect of whom            D
prosecution for criminal charge is pending, his assessment is to be kept
in a sealed cover and is not to be given effect to. The question is as to
when prosecution for criminal charge is treated to have been 'pending'.
This aspect came up for consideration in K. V. Jm1kiranu111's case and
the Court held that sealed cover procedure is to be resorted to only after
the charge memo/chargesheet is issued, as is clear from the following         E
passage in para 16 of the judgment:
      "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 chafg<.:-memo           F
      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-                 G
      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
                                                                              H
506            SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A           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
B
            the e111ployees 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
 c          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 re,levant
            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
D
            suspension by itself permits a resort to the sealed cover
            procedure. The authorities thus are not without a remedy... "
             17. In view of the aforesaid law laid down by this Court, the
      crucial aspect is as to whether the prosecution for criminal charge was
 E    pending against the appellant when the DPC meeting was held. In K. V.
      Jankirammi's case, this Court gave imprimatur to the order of the CAT
      holding that ifthe chargesheet is filed in a criminal court, sealed cover
      procedure can be resorted to. This was conclusion No.4 of the CAT
      judgment, which was upheld by this Court, and this conclusion reads as
      under:
 F          "(4) the sealed cover procedure can be resorted to only
            after a charge memo is served on the concerned official or
            the charge-sheet filed before the criminal court and not
            before;"
           18. In the present case, chargesheet was filed by the CBI, after
 G    completion of the investigation, on 09.12.2008 and the meeting of the
      DPC was held thereafter i.e. on 29.03.2011.
            19. In order to overcome the aforesaid hindrance coming in the
      way of appellant, he submitted that the date of reckoning should be the
      date on which the vacancy occurred and not the date on which the DPC
.H
HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 507
                              rA.
                  K. SIKRI, J.l

was held. This argument cannot be countenanced having regard to the                    A
Jaw laid down by this Court in Arindam Cltattopadflyay and others v.
State of West Bengal and others~ and P. Grover v. State of Haryana 3•
       20. Therefore, move on the part of the DPC to resort to the sealed
cover procedure is justified. We may record at this stage that the
aforesaid position contained in O.M. dated 14.09.1992 in respect of sealed B
cover procedure has been repeated in subsequent office memoranda.
Vide O.M. dated 02.11.2012, the Ministry of Personnel, Government of
India had issued certain clarification keeping in view the dicta laid down
in K. V. Jankiraman 's case. After quoting the three circumstances
stated in O.M. dated 14.09.1992, wherein sealed cover procedure can
be followed, para 6 of the O.M. states as under:                           C
      "6. 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                         D
      investigation prior to issue of chargesheet in disciplinary
      proceedings or prosecution, ifthe 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 the DPC recommendation to be kept in                          E
      sealed cover. The sealed cover procedure is to be
      resorted to only after the charge memo/chargesheet
      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.
                                                                                       F
                                                 (emphasis supplied)"
        21. In para 7, it is clarified that even after recommendation of the
DPC, but before appointment of the officer, if any of the three situations
arise, the case is deemed to be kept in sealed cover by virtue of para 7
ofO.M. dated 14.09.19924 •
                                                                                       G
       22. This O.M. further clarifies the stage when prosecution for a
'(2013) 4 sec 1s2
'< 1983) 4 sec 291
"Para 7 ofO.M. dated 14.09.1992 came up for interpretation in Union of India and
 another v. R.S. Sharma, (2000) 4 SCC 394, giving effect to the aforesaid provision.   H
508            SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A     criminal charge can be stated to be pending as this was not specified in
      O.M. dated 14.09.1992. Reference in this para is made to Rule 9(6)(b)(i)
      of Central Civil Services (Pension) Rules, 1972 which provides that
      criminal charge would be treated as pending in the case of criminal
      proceedings, on the date on which the complaint or a report of police
      officer, on which Magistrate takes cognizance, is made. It, thus, makes
B
      it clear that the date on which report of police is made would be the
      relevant date.
            23. We, thus, do not find fault with the action of the respondents
      in keeping the result of the DPC in sealed cover.

c            24. While it may be so, other contention of the appellant regarding
      review of his case has adequate merit. 0.M. dated 14.09.1992 as well
      as other O.Ms. impress the necessity of ensuring that the disciplinary
      case/criminal prosecution instituted against any Government servant is
      not unduly prolonged and all efforts to finalise expeditiously the
      proceedings should be taken so that the need for keeping the case of a
D     Government servant in a sealed cover is limited to the barest minimum.
      It is further provided that the appointing authorities should review
      comprehensively the cases of Government servants, whose suitability
      for promotion to a higher grade has been kept in a sealed cover. Such
      review should be undertaken on the expiry of6 months from the date of
 E    convening the first DPC which had adjudged the suitability and kept the
      findings in sealed cover. This review is also to be done subsequently as
      well, after every six months. It is also mandated that the review should,
      inter alia, cover the progress made in the disciplinary proceedings/
      criminal prosecution and further measures be taken to expedite the
      completion. Para 5 of the O.M. dated 14.09.1992 takes into consideration
 F    the situation where such proceedings are not concluded even after the
      expiry of2 years and impresses upon the appointing authorities to consider
      the desirability of giving promotion to such Government servants keeping
      in view the fol lowing aspects:
             (a) whether the promotion of the officer will be against the public
 G    interest;
             (b) whether the charges are grave enough to warrant continued
      denial of promotion;
            (c) whether there is any likelihood of the case coming to a
H     conclusion in the near future;
 HARSH KUMAR SHARMA, IFS v. STATE OF PUNJAB & ANR. 509
                 fA. K. SIKRI, J.1

       (d) whether the delay in the finalisation of proceedings,                   A
departmental or in a court of law, is not directly or indirectly attributable
to the Government servant concerned; and
      (e) whether there is any likelihood of misuse of official position
which the Government servant may occupy after ad-hoc promotion, which
may adversely affect the conduct of the departmental case/criminal                 B
prosecution.
         25. In the instant case, no review, after every six months, after
 the convening of the first DPC way back in the year 2011, has been
 done. No doubt, the criminal proceedings have not been initiated because
 of the challenge to such proceedings by the appellant in the High Court           c
·and this Court where the matters remain pending, at the same time, such
 review should have been taken. This was more so when after examining
 the case of the appellant, at one point of time, view was to even withdraw
 the sanction and drop the prosecution. Even when the Central
 Government repeatedly asked the State Government to do so, the State
 Government kept on dragging its feet. No doubt, it has now been decided           D
 not to withdraw the sanction and that issue is the subject matter of SLP
 (Criminal) No. 7647 of2009. Fact remains that delay in this behalf has
 been on the part of the State Government. There are other significant
 developments insofar as issue of golf course in a forest area is concerned,
 it is almost dead now. The persons involved in the said main case stand           E
 discharged. Even the public servants involved therein stand promoted.
 In view thereof, the Government should have considered the desirability
 of giving the appellant ad-hoc promotion when primafacie none of the
 circumstances mentioned in para 5 of O.M. dated 14.09.1992 and
 extracted above appear to exist.
                                                                                   F
        26. We, therefore, dispose of these appeals with directions to the
respondents to consider the case of the appellant for ad-hoc promotion
keeping in view the circumstances of this case including the developments
after the judgment of the High Court which are noted in briefhereinabove.
Such a consideration shall, be done within a period of one month of this
judgment. The contempt petitions also stand closed.                                G

        27. No costs.


 Kalpana K. Tripathy                                        Appeals disposed of.

                                                                                   H