Promotion in sealed cover
P K Sharma
(Querist) 07 August 2014
This query is : Resolved
Kind attention is drawn to Rule 3.1 as shown hereunder of Office Memorandum No.22011/4 /91-Estt.(A) of 14th Sept., 1992 of Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training-
“3.1 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 findings of the sealed cover/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.”
I was awarded a penalty of Censure. However in compliance to Para 3.1 of above Office Memorandum the sealed cover was not opened despite the fact that there are so many instances where an employee having awarded penalty of Censure prior to DPC have been promoted.
The rule is not only discriminatory but also contradictory which can be proved by the following example.
Two employees who were under the zone of consideration for promotion on 01.01.14 were served with chargesheets on 20.12.13 to reply in defence within 15(Fifteen) days. One of the employee submitted his replies on 25.12.13 & the Disciplinary authority awarded him a penalty of Censure before 01.01.14. DPC considered him to be promoted to next higher grade since Censure does not have any currency period. The other employee submits his reply on 02.01.14 & was also censured by the Disciplinary authority. However his candidature which will be in sealed cover will not be acted upon. Will there will not be injustice in later case?
Will the former will enjoy Promotion benefit whereas the candidature of the later will continue to remain in sealed cover?
The example cited above clearly proves that the rule itself is discriminatory and violates article 20 of the constitution of India since a double penalty i.e. (i) Minor penalty of censure and (ii) withholding of promotion is imposed to one of the candidate and also violates article 14 and 16 of the constitution of India since quantum of punishment is different for same type of penalty.
May kindly apprise that I have to proceed court of law for justice.
Anirudh
(Expert) 07 August 2014
Dear Mr. Sharma,
Whatever may be our views, I am sure, you will approach Court of Law for your grievance, and you must approach Court of law. There is no doubt about it.
But technically / legally speaking, the answer to your query would be as under:
1. A person inflicted with Censure prior to DPC gets promoted, as though 'censure' is a penalty (minor penalty) but is not a bar for promotion.
2. If a person's DPC result is kept in sealed cover, due to pending departmental proceedings, the sealed cover is liable to be opened only AND ONLY when the departmental proceedings ends in 'no penalty' to the charged official.
The sealed cover need not be opened in case any penalty is imposed on the departmental official. If at the end of the departmental proceedings, the minor penalty of censure is imposed, then the sealed cover need not be opened.
But, for future promotion of the censured official, the penalty of censure will not be a bar.
ajay sethi
(Expert) 07 August 2014
well advised by Mr Anirudh
Guest
(Expert) 07 August 2014
Not the date of reply, but the date of DPC, whether before or after the date of punishment, is quite material for the purpose of promotion. If on the date of DPC, your disciplinary case was pending, the DPC was bound to keep its recommendation in sealed cover. Other official's case was not not due for sealed cover, if his penalty order was issued before the DPC took place. That being the difference, there seems no discrimination.
You may better fight the case on the analogy that the censure has only a momentary effect, being merely a statutory warning, not the penalty to continue for which the promotion be affected.
Advocate. Arunagiri
(Expert) 07 August 2014
In cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC which kept its findings in respect of the Government servant in a sealed cover then subject to condition mentioned in Para 5 of this Department’s O.M. dated 14.09.1992, the appointing authority may consider desirability of giving him ad-hoc promotion (Para 5 of this Department’s O.M. dated 14.09.1992).
8. All the administrative authorities in the Ministries/Department are advised to place relevant records, including chargesheet, if any, issued to the officer concerned, penalty imposed, etc., before the DPC/ACC who will decide the suitability of officer for promotion keeping in view the general service records of the officer including the circumstances leading to the imposition of the chargesheet or penalty imposed. If such an officer is found suitable, promotion will be given effect after the currency of the penalty is over.
for more details see
http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/22011_4_2007-Estt.D-28042014.pdf
