Holding

Awarding of censure is a blameworthy factor; therefore, under Rule 3.1 of the Office Memorandum, sealed‑cover findings cannot be acted upon and the respondent is not entitled to promotion retroactive to 1 November 1999.

Summary

The Union of India appealed against a decision of the Kerala High Court that had upheld the Central Administrative Tribunal’s order granting the respondent, A.N. Mohanan, promotion retroactively to 1 November 1999 despite a penalty of censure imposed during a pending departmental inquiry. The Court examined Rule 3.1 of the Office Memorandum dated 14 September 1992, which states that if any penalty is imposed, the findings of the sealed cover cannot be acted upon and the promotion case must be reconsidered by the next Departmental Promotion Committee. It held that a censure is a blameworthy factor and therefore bars the use of sealed‑cover findings for promotion. Consequently, the respondent’s claim to back‑dated promotion was rejected, although he had been promoted effective 26 November 2001. The High Court and CAT judgments were set aside and the appeal was allowed.

Issues considered

Whether a penalty of censure constitutes a blameworthy factor that bars the operation of sealed‑cover findings for promotion under Rule 3.1 of the Office Memorandum.
Whether the respondent is entitled to promotion with effect from 1 November 1999 despite the censure.
Whether the CAT and High Court erred in holding that censure does not impede promotion.

Subjects

promotionsealed coverpenalty of censuredepartmental inquiryDepartmental Promotion CommitteeOffice Memorandumservice lawcivil appellate jurisdiction

Judgment

UNION OF INDIA AND ORS. A
\I.

A.N. MOHANAN

APRIL 18, 2007

[DR. ARIJITPASAYAT AND D.K.JAIN, JJ.] B

Service Law:

Promotion-Sealed cover procedure-Penalty of censure-Held:
Awarding of censure is a blameworthy factor and, therefore, findings of C
sealed cover are not to be acted upon-Case ofpromotion rightly considered
by the next DPC in normal course-0.M. dated 14.9.1992 issued by
Government of India, Ministry of Personnel, Public Grievances and Pension,
Department of Personnel and Training-R 3.1.

Pending departmental inquiry against the respondent, the Departmental
D
Promotion Committee made selections on 1.11.1999 and adopted sealed cover
procedure as regards the respondent. The departmental proceedings
culminated in the penalty to censure being awarded to the respondent He was
later promoted on 26.11.2001. He claimed promotion w.e.f. 1.11.1999. The CAT
as also the High Court having held in his favour, the Department filed the E
present appeal.

It was contended for the appellant that since penalty of censure was
imposed on the respondent, in view of Rule 3.1 of the Office Memorandum
dated 14.9.1992 relating to promotion of Government servants issued by the
~· Government of India, Ministry of Personnel, Public Grievances and Pension, F
Department of Personnel and Training, findings of sealed cover were not to
be acted upon and the respondent was rightly promoted w.e.f. 26.11.2001.

Allowing the appeal, the Court

HELD: Awarding of censure is a blameworthy factor. Rule 3.1 of O.M. G
dated 14.9.1992 issued by Government of India, Ministry of Personae~ Public
Grievances and Pension, Department of Personnel and Training, makes the
position clear that where any penalty has been imposed, the findings of the
sealed cover are not to be acted upon and the case for promotion may be
279 fl
280 SUPREME COURT REPORTS (2007] 5 S.C.R.

A considered by the next DPC in the normal course. Having regard to the penalty f
imposed on the respondent, his claim for promotion with effect from 1.11.1999
was clearly unacceptable. Undisputedly the respondent has been given
promotion with effect from 26.11.2001. The order of High Court affirming
the view taken by the CAT is set aside. (Para 10 and 11) [283-E-F)

B Union of India etc. etc. v. Jankiraman etc.etc., AIR [1991) SC 2010,
relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2020 of2007.
)._. ...
From the Judgment and Order dated 28. l 0.2004 of the High Court of
C Kerala at Emakulam in W.P. No. 31602 of 2004.

A. Sharan, ASG., Sushma Suri and Sunita Sharma for the Appellants.

Haris Beeran and Radha Shyam Jena for the Respondent.

D The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of
the Kerala High Court dismissing the writ petition filed by the appellants. In
E the writ petition challenge was made to the order passed by the Central
Administrative Tribunal, Emakulam Bench (in short the 'CAT') in O.A. No.
203 of2002.

3. The controversy lies within a very narrow compass.

F 4. Departmental enquiry was started against the respondent on 3.8. I999.
The Departmental Promotion Committee (in short the 'DPC') made the selection
on 1.11. I999. Since the enquiry was pending against the respondent, sealed
cover procedure was adopted. On 13 .9 .200 I the penalty of censure was
awarded. Promotion was granted to the respondent on 26.11.200 I. However,
G he claimed that promotion should have been given to him with effect from
I.I 1.1999. He moved the CAT seeking for such direction. CAT by its order
dated 18th June, 2004 held that penalty of censure is not a bar for promotion
and though the sealed cover procedure was adopted, the sealed cover should
have been opened and the recommendation of DPC should have been given
effect to by giving the respondent promotional benefit with effect from
H 1.11.1999.
U.0.1. v. A.N. MOHAN AN [PASAYA T, J.] 281
~
5. The order of CAT was challenged before the High Court by filing a A
writ petition. The High Court noted that awarding of penalty of censure would
not affect the promotion of the resoondent and the department was not right
in contending that the awarding of penalty (censure) would stand on the way
of promotion. Accordingly the writ petition was dismissed.

6. Learned counsel for the appellants submitted that the effect of Rule B
3.1 of the Office Memorandum relating to promotion of government servants
- .......
dated 14.9.1992 issued by the Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of Personnel and Training, has
been lost sight of. According to him, Rule 3.1 clearly postulates that where
penalty has been imposed, findings of the sealed cover/covers are not to be
acted upon and the case of promotion can be considered by the next DPC
c
in the normal course.

7. Learned counsel for the respondent on the other hanci submitted that
the awarding of penalty i.e. censure was not the sole ground for seeking
promotion with effect from l .11.1999, and it was because of the conclusion D
that the validity of previous panel had been exhausted.
-f
8. Few Rules as contained in the Office Memorandum need to be noted.

Rules 3 and 3.1 read as follows:
E
Rule 3 : On the conclusion of the disciplinary case/criminal prosecution
which results in dropping. of allegations against the Govt. servant,
the sealed cover or covers shall be opened. In case the government
servant is completely exonerated, the due date of his promotion will
be determined with reference to the position assigned to him in the
findings kept in the sealed cover/covers and with reference to the F
date of promotion of his next junior on the basis of such position. The
Government servant may be promoted, if necessary, by reverting the
Junior, most officiating person. He may be promoted notionally with
reference to the date of promotion of junior. However, whether the
officer convened will be entitled to any arrears of pay for the period G
of notional promotion preceding the date of actual promotion, and if
so to what extent, will be decided by the appointing authority by
taking into consideration all the facts and circumstances of the
disciplinary proceedings/criminal prosecution. Where the authority
denies arrears of salary or part of it, it will record its reasons for doing
so. It is not possible to anticipate and enumerate exhaustively all the H
282 SUPREME COURT REPORTS [2007] 5 S.C. R.

A circumstances under which such denials of arrears of salary or part
of it may become necessary. However, there may be cases where the
proceedings, whether disciplinary or criminal, are, for example, delayed
at the instance of the employee or the clearance in the disciplinary
proceedings or acquittal in the criminal proceedings is with benefit of
doubt or on account of non- availability of evidence due to the acts
B attributable to the employee etc., these are only some of the
circumstances where such denial can be justified.

Rule 3. I: If any penalty is imposed on the Government servant as a
result of the disciplinary proceedings or if he is found guilty in the
Criminal prosecution against him, the finding of the sealed cover/
c covers shall not be acted upon. His case for promotion may be
considered by the next DPC in the normal course and having regard
to the penalty imposed on him."

9. Though learned counsel for the respondent submitted that awarding
D of censure does not amount to awarding of penalty, the same is clearly
untenable. In Union of India etc.etc. v. K. V. Jankiraman etc.etc., AIR (1991)
SC 20 I 0 at page 2017 it was held as follows: y-

"We are, therefore, broadly in agreement with the finding of the
Tribunal that when an employee is completely exonerated meaning
E thereby that he is not found blameworthy in the least and is not
visited with the penalty even of censure, he has to be given the
benefit of the salary of the higher post along with the other benefits
from the date on which he would have normally been promoted but
for the disciplinary/criminal proceedings. However, there may be cases
where the proceedings, whether disciplinary or criminal, are, for
F example, delayed at the instance of the employee or the clearance in
the disciplinary proceedings or acquittal in the criminal proceedings
is with benefit of doubt or on account of non-availability of evidence
due to the acts attributable to the employee etc. In such circumstances,
the concerned authorities must be vested with the power to decide
G whether the employee at all deserves any salary for the intervening
period and if he does, the extent to which he deserves it. Life being I -
complex, it is not possible to anticipate and enumerate exhaustively
all the circumstances under which such consideration may become
necessary. To ignore, however, such circumstances when they exist
and lay down an inflexible rule that in every case when an employee
H is exonerated from disciplinary/ criminal proceedings he should be
U.0.1. v. A.N. MOHANAN [PASAYAT, J.] 283
entitled to all salary for the intervening period is to undennine discipline A
in the, administration and jeopardise public interests. We are, therefore,
unable to agree with tte Tribunal that to deny the salary to an
employee would in all circumstances be illegal. While, therefore, we
do not approve of the said last sentence in the first sub-paragraph
after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no B
arrears of pay shall be payable to him for the period of notional
promotion preceding the date of actual promotion", we direct that in
place of the said sentence the following sentence be read in the
Memorandum:

"However, whether the officer concerned will be entitled to any C
arrears of pay for the period of notional promotion preceding the
date of actual promotion, and if so to what extent will be decided
by the concerned authority by taking into consideration all the
facts and circumstances of the disciplinary proceeding/criminal
prosecution. Where the authority denies arrears of salary or part
of it, it will record its reasons for doing so." D
10. Awarding of censure, therefore, is a blameworthy factor. A bare
reading of Rule 3. I as noted above makes the position clear that where any
penalty has been imposed the findings of the sealed cover are not to be acted
upon and the case for promotion may be considered by the next DPC in the
nonnal course. E
I I. Having regard to the penalty imposed on him, undisputedly the
respondent has been given promotion with effect from 26.11.2001. His claim
for promotion with effect from I. I I. I999 was clearly unacceptable and, therefore,
the CAT and the High Court were not justified in holding that he was entitled
to be promoted with effect from 1.11.1999. The order of High Court affinning F
the view taken by the CAT cannot be sustained and is, therefore, set aside.

12. The appeal is allowed without any orders as to costs.

RP. Appeal allowed.
G