ORDER
Shanker Raju, Member (J)
1. Heard the learned Counsel for the parties.
2. Through this OA, applicant, who has been compulsory retired by way of a penalty on modification by the appellate authority, assails an order passed by the respondents on 8.8.2005 whereby his suspension, which was on account of involvement in criminal case, was revoked and the period from the date of suspension till his acquittal in criminal case, has been treated as spent on duty with all benefits.
3. The grievance of the applicant is that the promotion had accrued to him in the year 1989 when the criminal proceedings were on and the junior of the applicant was promoted.
4. Learned Counsel for applicant relies upon the decision of the Apex Court in Delhi Jal Board v. Mahinder Singh to substantiate his plea to the effect that the subsequent proceedings would not affect the right of promotion accrued to a person from the date of his junior has been so promoted.
5. On the other hand, learned Counsel for respondents vehemently opposed the contentions and stated that as the applicant stood compulsory retired on penalty, he has no right to the promotion and whatever was admissible to him has already been disbursed to him vide order dated 8.8.2005.
6. We have carefully considered the rival contentions of the parties and perused the record.
7. In the light of the decision in Mahinder Singh’s case (supra), the DOPT has issued the OM dated 24.2.2003, wherein the following decision has been taken:
Sealed Cover Procedure – Judgment of the Supreme Court in the case of Delhi Jal Board v. Mohinder Singh JT 2002 (10) SC 158. – The undersigned is directed to refer to Para.7 of this Department’s O.M. No. 22011/4/91-Estt. (A), dated the 14th September, 1992 which envisage as follows:
A Government servant, who is recommended for 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 by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM, will be applicable in his case also.
2. In the case of Delhi Jal Board v. Mohinder Singh, the Supreme Court had held as follows:
The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officers would have to be given effect to as they obviously relate back to the date on which the charges are framed. The mere fact that by the time the disciplinary proceedings, in the first inquiry ended in his favour and by the time the seal was opened to give effect to it, another departmental inquiry was started by the department, would not come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection.
3. It is, therefore, clarified that Para.7 of the OM, dated the 14th September, 1992 will not be applicable if by the time the seal was opened to give effect to the exoneration in the first enquiry, another departmental inquiry was started by the department against the Government servant concerned. This means that where the second or subsequent departmental proceedings were instituted after promotion of the junior to the Government servant concerned on the basis of the recommendation made by the DPC which kept the recommendation in respect of the Government servant in sealed cover, the benefit of the assessment by the first DPC will be admissible to the Government servant on exoneration in the first inquiry, with effect from the date his immediate junior was promoted.
4. It is further clarified that in case the subsequent proceedings (commenced after the promotion of the junior) results in the imposition of any penalty before the exoneration in the first proceedings based on which the recommendations of the DPC were kept in sealed cover and the Government servant concerned is promoted retrospectively on the basis of exoneration in the first proceedings, the penalty imposed may be modified and effected with reference to the promoted post. An indication to this effect may be made in the promotion order itself so that there is no ambiguity in the matter.
5. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these instructions are issued after consultation with the Comptroller and Auditor-General of India.
8. In the light of above, it is not disputed that the applicant was placed under suspension when his promotion was kept under sealed cover in 1989 and also in 1993. It is also not disputed that junior of the applicant stood promoted to the post of UDC in 1990 itself. In such view of the matter, subsequent proceedings would not be an impediment for consideration for promotion.
9. On the fact that the applicant has now since retired, it is stated in the order that the penalty imposed would have to be modified as if inflicted in the promoted post with higher rank to be accorded to the concerned in the light of the aforesaid OM.
10. In the result, OA stands disposed of to the extent that the claim of the applicant for promotion to the post of UDC with effect from 1990 shall now have to be considered by the respondents and if he is found otherwise suitable on opening the sealed cover, he shall be accorded the benefits on notional basis from the date his junior has been accorded the same. Applicant would be entitled to all the consequential benefits of revision on retiral benefits in accordance with law. No costs.