Jagdish Prasad Mandawra v. Union of India and Ors.

1. This petition has been filed by the petitioner with the following prayers:

2. In effect, the petitioner is seeking a direction from this Court to the respondents to open the sealed cover in respect of recommendations made by Departmental Promotion Committee (DPC) on 18.04.2018 for petitioner’s promotion to the post of Executive Engineer (Civil) and thereby to promote him on the said post with effect from 24.04.2018 when officers junior to the petitioner were promoted and consequentially restore his seniority and grant him arrears of difference of salary with interest at 12% per annum.

3. The case of the petitioner as noted from the record and also contended by the learned counsel for the petitioner is that, he is working as an Assistant Executive Engineer in Border Roads Organisation (BRO). On 07.11.2017, he was issued a charge-sheet. On 18.04.2018, when the charge-sheet was still under consideration, a DPC was convened, which considered all the officers in the Zone Of Consideration for promotion to the post of Executive Engineer (Civil). According to the petitioner, thirty-two officers were promoted on 24.04.2018 which included officers junior to the petitioner, but not the petitioner.

4. Insofar as the petitioner is concerned, the recommendations of the DPC were kept in a sealed cover. On 01.10.2021, the petitioner was exonerated in the charge-sheet issued on 07.11.2017. It is his case, that in view of the exoneration, the sealed cover ought to have been opened and the recommendations given effect to. The respondents did not open the sealed cover. According to them, the same is in view of the pendency of the second charge-sheet dated 25.03.2021 issued to the petitioner before the exoneration of the petitioner on 01.10.2021. The learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Delhi Jal Board v. Mahinder Singh (2000) 7 SCC 210 to contend the pendency of second charge-sheet shall not be an impediment to open the sealed cover and promote the petitioner if found fit. The learned counsel for the petitioner has also relied upon the judgments in the case of Union of India v. Doly Loyi, 2024 SCC OnLine SC 2613, Union of India v. K V Jankiraman 1991 (4) SCC 109 and Sunil Chaurasia v. District & Sessions Judge (HQS) 2023 SCC OnLine Del 826, for a similar proposition.

5. On the other hand, the learned counsel for the respondents would submit that the petitioner while serving as a Paying Officer in 109 Road Construction Company (RCC) was found by Central Bureau of Investigation (CBI) to be involved in a case of false mustering with the help of medical examination form in connivance with OC 109 RCC. The CBI, Srinagar recommended taking regular departmental action against the petitioner for major penalty. According to the respondents while functioning as paying officer in 109 RCC, the petitioner was alleged to have been involved in another case of fake and forged mustering.

6. Accordingly, the first charge sheet was issued on 07.11.2017. The promotion to the post of Executive Engineer (Civil) fell due and as per the DPC recommendations, thirty two officers were promoted. The petitioner was not promoted and his case was kept in a sealed cover. In the meanwhile on 25.03.2021, a second charge sheet was issued to the petitioner. That on 01.10.2021, the petitioner was exonerated in respect to the first charge-sheet. The second charge-sheet issued on 25.03.2021, has resulted in the order dated 09.11.2023, whereby a penalty of reduction of pay to a lower stage in the time scale by one stage for a period of three and a half years with cumulative effect and it will have the effect of postponing future increments of his pay was imposed on the petitioner.

7. The submission of the learned counsel for the respondents is that the petitioner shall not be entitled to the benefit of the opening of the sealed cover, as on the date when the petitioner was exonerated in the first chargesheet, the second charge-sheet was pending which has resulted in a penalty. Hence the prayer sought cannot be granted.

8. Having heard the learned counsel for the parties and perused the record, the issue which arises for consideration is whether the sealed cover whereby the recommendations of the DPC dated 18.04.2018 were kept, need to be opened.

9. The case of the learned counsel for the petitioner primarily relies upon the judgment of the Supreme Court in the case of Delhi Jal Board (supra). In the said judgment, the Supreme Court was considering the case wherein the recommendations of the DPC pertaining to the respondent therein were kept in a sealed cover as a charge sheet was issued to him. He was exonerated of the charges however by the time he was exonerated, the second charge sheet had been issued to him. In view of this factual situation, the department therein did not give effect to the DPC recommendation. The Supreme Court held that once the first inquiry has resulted in exoneration, the benefit of the DPC recommendation, lying in the sealed cover, cannot be denied to the respondent therein for the reason on the date of DPC, the respondent was not under the cloud for the second charge-sheet.

10. The said judgment of the Supreme Court in Delhi Jal Board (supra) clearly applies to the facts of this case. In this regard, we may reproduce the relevant conclusion of the Supreme Court in paragraphs 5 and 6 of the judgment as under:

11. So, in view of the above position, the respondents are required to open the sealed cover wherein the recommendations of the DPC dated 18.04.2018 in respect of promotion of the petitioner to the post of Executive Engineer

(Civil) are kept so as to give effect to the same. In other words, the issue of the second charge sheet which resulted in a penalty on the petitioner of which a reference is made above shall not have a bearing on the sealed cover, which procedure was adopted in respect of a charge sheet of which the petitioner has been exonerated and also the petitioner, on the date of DPC was not under cloud for the second charge-sheet. At this stage, we may state that in terms of the instructions related to ‘Sealed Cover Procedure’ updated by the DoPT as on 30.08.2022 wherein, paragraph 6.[2] of OM dated 24.02.2003 states that the penalty which has been imposed on the petitioner shall be modified and effected with reference to the promoted post, the same has been reproduced as under: “6.[2] 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.”