Can, I eligible to got promotion ?
Ramesh Ch. Chhura
(Querist) 05 August 2018
This query is : Resolved
Still my departmental proceeding( for vigilance case) is pending and also my vigilance case (not red handed, but in doubt) is under subjudice . On the above circumstances, is there any provision to got promotion? Please advise.
Sudhir Kumar, Advocate
(Expert) 06 August 2018
No promotion will be there during pendancy of any departmental/criminal case.
PARDEEP KUMAR
(Expert) 06 August 2018
Yes, if a criminal case or departmental disciplinary proceeding do not get complete in 2 years, the Department is required to review, open the seal cover and subject to certain parameters allow promotion on ad-hoc basis if otherwise eligible.
Guest
(Expert) 06 August 2018
Dear Mr. Ramesh Ch. Chhura,
If the case is subjudice, the promotion can be expected only on exoneration of the charge by the court of law. Fight your case effectively on its merits to get exonerated from the charge.
N.K.Assumi
(Expert) 06 August 2018
With due respect to the opinions of other experts, I am with expert Pradeep Kumar. Reasons is, our criminal jurisprudence is based on the presumptions of innocence of the accused, unless proved otherwise by evidence according to Law. Just because a criminal case is pending does not mean that he cannot be deprived of his right to promotion, provided the seal cover procedure is followed.
Guest
(Expert) 06 August 2018
Dear Shri Assumi,
Notwithstanding reply of anyone else, at least my reply is not based on assumptions or presumptions. It is based on Statutory Rules framed under the provisions of the Constitution of India.
Criminal Laws & Service Laws are two different sets of Laws, which have no relation with each other. Promotions are regulated by the Service Laws, which have certain set of parameters to be observed before allowing promotion to the employee. That includes a parameter of good conduct of the employee and is a must for getting promotion. Any incident that indicates his involvement in moral turpitude or criminal activity that is treated as misconduct on his part and gets recorded in his Annual confidential Record, which now a days is called APAR. Until he is absolved of the charge by the competent Court of Law, the adverse entry cannot get automatically expunged.
Further, while deciding a case, the Court of law has also to follow the provisions of such statutory rules of conduct or promotion until and unless declared unconstitutional by the Supreme Court of India, if challenged separately.
However, the employee becomes eligible for promotion from back date, if exonerated of the charge, but cannot be promoted during trial period. But, if the employee is prosecuted on account of the charge, he gets only dismissal from service. Once Indian Evidence Act comes in to picture that the related case falls in the jurisdiction of the court to decide whether the employee is treated as criminal or not. Hands of the department are tied and it has to compulsorily wait for the verdict of the court for any further action in the case pertaining to the service of the employee.
So, misunderstanding should be shed about operation of service rules/laws in tandem with the operation of criminal laws.
K Rajasekharan
(Expert) 06 August 2018
Pendency of criminal case or departmental proceedings is not a sound ground to not consider an officer for promotion. This is what a High Court says by referring to the Supreme Court decisions. The court says it is a well settled position.
The court, in a 2017 order, states, “The law is fairly settled in plethora of decisions of this Court, as well as the apex Court that pendency of criminal case or a departmental proceeding cannot disentitle a person to be considered for promotion”.
Please see the judgment at https://indiankanoon.org/doc/161294856/
Sudhir Kumar, Advocate
(Expert) 06 August 2018
@ Mr NK Assumi
Good. Presumption of innocence during trial is nice doctrine of jurisprudene.
It could have been very nice if this applied in Service Matters as well.
but
In service mater it is 180 degree opposite. One has to be presumed guilty till exonerated that too not in every exhoneration.
Sudhir Kumar, Advocate
(Expert) 06 August 2018
Mr Rajasekharan quoted one case available at https://indiankanoon.org/doc/161294856/.
The case is different.
(I) In this case the petitioner was acquitted. The querist is not yet acquitted.
(II) In this case the deptt decided not to pursue the departmental proceeding (which deptt can do inspiote of exoneration by criminal case). The querist will reach this stage if/when acquitted.
(II) In this case the person was promoted but his dispute was date of promotion with reference to reserved vacancy.
Even in this case also the petition was never promoted during proceedings.
K Rajasekharan
(Expert) 06 August 2018
The sealed cover procedure is as follows : when an employee is due for promotion, increment etc. but disciplinary /criminal proceedings are pending against him at the relevant time, the findings of his entitlement to such benefit are kept in a sealed cover to be opened after the proceedings in question are over.
Therefore, the Supreme Court in a 1991 case declared, “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. 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. If the charges are that serious, the authorities have the power to suspend the employees under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.”
Please see the judgement at https://indiankanoon.org/doc/1142043/
Sudhir Kumar, Advocate
(Expert) 06 August 2018
Sealed cover procedure means denial of promotion unless exonerated.
K Rajasekharan
(Expert) 07 August 2018
Sealed cover procedure is not denial of promotion, but postponement of it. It is a invention of the court so as not to deny rightful promotion when a civil servant is under penal action. It is a measure to deal with the inordinate delay caused in the completion of such penal proceedings and consequent denial of rightful promotion to the incumbent. The cover carries his entitlement to be opened after the proceedings in question are over.
K Rajasekharan
(Expert) 07 August 2018
The sealed cover procedure comes into play only after the issue of charge sheet but not before that. Till then the officer is not devoid of the presumption of pristine innocence in regard to the alleged crime. Since the filing of FIR on almost any FIS has become mandatory as per Lalita Kumari case, it is quite easy for anyone to slap a criminal complaint on anyone, particularly under Rape, Stalking, sexual harassment, 498A, SC/ST Act, outraging modesty, etc.
K Rajasekharan
(Expert) 07 August 2018
A civil servant has a right to be considered for promotion according to his turn under Articles 14 & 16 (1). Therefore deferring of promotion must pass the test of reasonableness. It is to be determined on the facts of each case. So deferring a due promotion indefinitely on account of some departmental or penal action is unreasonable and therefore unconstitutional.
Sudhir Kumar, Advocate
(Expert) 07 August 2018
Sealed cover is not opened after completion of proceedings.
Sealed cover is opened only if the proceedings result in exhortation.
Sudhir Kumar, Advocate
(Expert) 07 August 2018
denial of promotion during proceedings may be unreasonable as seen by Mr Rajasekharan. But This is not unconstitutional.
Sudhir Kumar, Advocate
(Expert) 07 August 2018
The petitioner never said that chargesheet is not issued. He has stated that the case is pending which otherwise implies (unless he gives correct facts) that charge sheet is there.
The querist has not even stated basisc fact:-
(i) whether it is criminal case
(ii) whether it is departmental case
(iii) whether both cases.
K Rajasekharan
(Expert) 10 August 2018
It needs immense ignorance, illiteracy and inexperience in law to accept that unreasonableness in action is not unconstitutional. Maneka Gandhi judgement, probably the second best in Indian history, carries the word unreasonable nearly thirty times just because of its importance in a constitutional scheme of “due process”.
Unreason leads to arbitrariness, discrimination and inequality before law. Making the equals unequal is an exercise of unreason and thereby leading to arbitrariness which offends the right to equality before law.
The Supreme Court says in AIR 2000SC 1683 that the right of eligible officials to be considered for promotion is virtually a part of their fundamental right.
It seems the evolving jurisprudence relating to administrative law does not go in tune with the mindset of those who view service matters with the ritualistic manner.
Guest
(Expert) 10 August 2018
Dear Mr. Sudhir,
I thought, in addition to his earlier statement, "pendency of criminal case or departmental proceedings is not a sound ground to NOT CONSIDER an officer for promotion," the official-turned-advocate would bring some great and surprising invention in response to your posts that could render the statutory Classification, Control & Appeal Riles, Conduct Rules, and RRs, as unconstitutional.
But ultimately, he came down with the fact of 'sealed cover" during pendaency of the departmental proceedings, but not the provision of any rule to allow promotion to the querist during the pendancy of the departmental as well as the judicial proceedings.
He further tried to teach the experts a lesson on the needs of "immense ignorance, illiteracy and inexperience in law to accept that unreasonableness in action is not unconstitutional" and further quoted "Maneka Gandhi judgement," but in what context, God knows, whether on eligibility or method for promotion during the pendency of vigilance or criminal cases..
Ignorance of service laws and rules are quite apparent on the part of the said official-turned-advocate, when he tried to preach his much hyped scholarly knowledge on "consideration for promotion" (not eligibility or provision for promotion) without understanding the requirement of the query, without proper interpretation of the replies to the query, and also without understanding the difference between the terms of "eligibility for promotion, "denial of promotion" and "non-consideration for promotion."
You may perhaps like to agree with me, he had the dire need to understand the difference between the terms of "eligibility", "consideration" and "provision of rules for promotion" during the pendency of the departmental inquiry and/ or judicial proceeding
THE QUESTION OF THE QUERIST WAS QUITE SIMPLE, where he wanted to know whether there was any provision to get promotion during the pendency of departmental as well as judicial proceeding (case being subjudice).
His replies clearly reveal that neither he read the question properly, nor the replies of all the experts. I don't think anyone of us has used the term, "cannot be considered for promotion.".
"Considered for promotion" does not mean that the official would definitely get promotion by ignoring any of the set parameters for promotion, more particularly during the pendency of the departmental inquiry and judicial proceedings, irrespective of the fact, he would have been eligible for promotion on qualifying all the set parameters for promotion as per the RRs of the organization.
.
Rather, he demonstrated his own "immense ignorance, illiteracy and inexperience in law", while touting for his much hyped knowledge and experience in law.
Guest
(Expert) 10 August 2018
Dear Mr. Sudhir,
I thought, in addition to his earlier statement, "pendency of criminal case or departmental proceedings is not a sound ground to NOT CONSIDER an officer for promotion," the official-turned-advocate would bring some great and surprising invention in response to your posts that could render the statutory Classification, Control & Appeal Riles, Conduct Rules, and RRs, as unconstitutional.
But ultimately, he came down with the fact of 'sealed cover" during pendaency of the departmental proceedings, but not the provision of any rule to allow promotion to the querist during the pendancy of the departmental as well as the judicial proceedings.
He further tried to teach the experts a lesson on the needs of "immense ignorance, illiteracy and inexperience in law to accept that unreasonableness in action is not unconstitutional" and further quoted "Maneka Gandhi judgement," but in what context, God knows, whether on eligibility or method for promotion during the pendency of vigilance or criminal cases..
Ignorance of service laws and rules are quite apparent on the part of the said official-turned-advocate, when he tried to preach his much hyped scholarly knowledge on "consideration for promotion" (not eligibility or provision for promotion) without understanding the requirement of the query, without proper interpretation of the replies to the query, and also without understanding the difference between the terms of "eligibility for promotion, "denial of promotion" and "non-consideration for promotion."
You may perhaps like to agree with me, he had the dire need to understand the difference between the terms of "eligibility", "consideration" and "provision of rules for promotion" during the pendency of the departmental inquiry and/ or judicial proceeding
THE QUESTION OF THE QUERIST WAS QUITE SIMPLE, where he wanted to know whether there was any provision to get promotion during the pendency of departmental as well as judicial proceeding (case being subjudice).
His replies clearly reveal that neither he read the question properly, nor the replies of all the experts. I don't think anyone of us has used the term, "cannot be considered for promotion.".
"Considered for promotion" does not mean that the official would definitely get promotion by ignoring any of the set parameters for promotion, more particularly during the pendency of the departmental inquiry and judicial proceedings, irrespective of the fact, he would have been eligible for promotion on qualifying all the set parameters for promotion as per the RRs of the organization.
.
Rather, he demonstrated his own "immense ignorance, illiteracy and inexperience in law", while touting for his much hyped knowledge and experience in law.
Sudhir Kumar, Advocate
(Expert) 10 August 2018
Mr Rajasekharan refereed to a judgement. In that judgement he referred that consideration for promotion is fundamental; right.
Sealed cover procedure doe snot deny someone to be considered.
It only denies him to be promoted if not exonerated.
Let the person be exonerated and get promoted.from the date when he was considered.
Sudhir Kumar, Advocate
(Expert) 10 August 2018
Mr Rajasekharan refereed to a judgement. In that judgement he referred that consideration for promotion is fundamental; right.
Sealed cover procedure doe snot deny someone to be considered.
It only denies him to be promoted if not exonerated.
Let the person be exonerated and get promoted.from the date when he was considered.
Sudhir Kumar, Advocate
(Expert) 10 August 2018
Mr Rajasekharan refered to a judgement. In that judgement he referred that consideration for promotion is fundamental; right.
Sealed cover procedure doe snot deny someone to be considered.
It only denies him to be promoted if not exonerated.
Let the person be exonerated and get promoted.from the date when he was considered.
Guest
(Expert) 10 August 2018
Dear Sudhir,
Undue controversy was created by the fellow, whereas, answers of none of the experts stated that he would not be considered for promotion during pendency of the departmental proceedings or the judicial proceedings..
Sealed cover procedure can neither be considered as denial of promotion nor surety of promotion on its opening, rather that denotes postponement of decision on the recommendation of the DPC on the issue of promotion of the employee, who has already been considered for promotion, subject to the outcome of the departmental inquiry or the judgment of the case as well as the recommendation of the DPC.
Sealed cover procedure, in itself, denotes that the employee was duly considered by the DPC for promotion, irrespective of whether he becomes eligible for promotion or not on merits of the case by fulfillment of the set parameters for promotion and outcome of the case against the employee.. So, the fellow should have known that irrespective of the employee having been considered for promotion, sealed cover, in itself does not guarantee promotion even after it is opened after closure of the cases in favour of the employee. That may contain the fact of non-selection of employee for promotion even after consideration, as based on not fulfilling the required parameters to qualify for promotion..
