Gyan Prakash Pandey vs State Of Up Thru Addl. Chief Secy. ...
2018 Latest Caselaw 855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SERVICE BENCH No. - 13751 of 2018
 

 
Petitioner :- Gyan Prakash Pandey
 
Respondent :- State Of UP Thru Addl. Chief Secy. Public Works Deptt. & Ors
 
Counsel for Petitioner :- Ishita Yadu,Gaurav Mehrotra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Virendra Kumar-II,J.

1. Rejoinder affidavit filed today in Court is taken on record.

2. Heard Mr. Gaurav Mehrotra, learned Counsel for the petitioner, Mr. Manjeev Shukla, learned Additional Chief Standing Counsel for the State-respondent nos. 1 to 3.

3. At the outset, Mr. Gaurav Mehrotra, learned counsel for the petitioner has pointed out that though he has made allegations against respondent no. 4 but he is not pressing the same, as such the issuance of notice to respondent no. 4 may be dispensed with.

4. In view of the above, notice to respondent no. 4 is dispensed with.

5. The petitioner has approached this Court seeking for a direction to the respondents to grant promotion to the petitioner on the post of Chief Engineer (Level-II) as per recommendations made by the Departmental Promotion Committee (hereinafter referred to as 'D.P.C.') held on 5.12.2017 within such reasonable time framed by this Court.

6. Submission of learned counsel for petitioner is that the petitioner was initially appointed on the post of Assistant Engineer in U.P. Public Works Department (hereinafter referred to as 'P.W.D.') through direct recruitment conducted by the U.P. Public Service Commission on 9.12.1983 and in due course of time, he was promoted to the post of Executive Engineer and latter to the post of Superintending Engineer. Presently, he is holding the post of Superintending Engineer (Litigation), Lucknow, which falls in Group-A/Class-I Services. Further submission is that from the date of petitioner's appointment, the career of petitioner has remained par excellence and the petitioner has been performing his duties to the best of his abilities with full sincerity and devotion.

7. A meeting of the Departmental Promotion Committee was convened on 5.12.2017 under the Chairmanship of the Chief Secretary, Government of U.P. for promotion to the post of Chief Engineer (Level-II) from amongst eligible Superintending Engineers, for selection year 2017-18 i.e. from 1.7.2017 to 30.6.2018 against eight vacancies. The recommendations of D.P.C. with regard to two Superintending Engineers were kept in a sealed cover on account of pendency of disciplinary inquiry/criminal proceedings against them and the petitioner was amongst nine Superintending Engineers, who were recommended for promotion to the post of Chief Engineer. It has been pointed out that out of nine Superintending Engineers, eight are either already holding the post of Chief Engineer or have retired after promotion, and only the petitioner who despite having been declared fit for promotion to the post of Chief Engineer has been kept stagnant on the post of Superintending Engineer due to impugned inaction of the respondents in promoting the petitioner to the post of Chief Engineer. It has further been pointed out that out of two Superintending Engineers whose result/recommendation was kept in sealed cover, one has already retired way back on 31.12.2017 and sealed cover envelope in respect of the other Superintending Engineer, namely, Shri Charu Chandra Joshi was opened on 26.4.2018 and he was found to be unfit/ineligible for promotion to the post of Chief Engineer. Thus when the said post of Chief Engineer (Level-II) fell vacant on 27.4.2018, the petitioner preferred a representation to the respondent no. 1 praying to promote him against the said vacant post. In the meantime, another post of Chief Engineer (Level-II) fell vacant on 30.4.2018 due to retirement of one Shri S.K. Agarwal, who was holding the post of Chief Engineer, Meerut Division, P.W.D.

8. It has been vehemently contended that when the petitioner has been found eligible and on 1.5.2018 two posts of Chief Engineer fell vacant, thus there was no justification to deny the legitimate claim of the petitioner and more so, when there is no legal impediment. Therefore, the petitioner once again approached the authority concerned by means of representation dated 3.5.2018 for promoting him to the post of Chief Engineer, but till date no positive action has been taken, which is causing serious prejudice and harm to the petitioner.

9. In opposition, a Counter affidavit has been filed stating therein that D.P.C. was held on 5.12.2017 and recommendation for promotion of the petitioner was made but before the said recommendation could be implemented, illegalities committed by the petitioner in between 2013 to 2016 came into light and for the said illegalities disciplinary proceedings have been initiated against the petitioner vide order dated 11.5.2018 and an Inquiry Officer has been appointed for conducting inquiry in the matter as per Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999. Further, a charge sheet has also been issued to the petitioner on 11.5.2018.

10. It has also been stated in the counter affidavit that from perusal of charge sheet dated 11.5.2018, it is clear that the charges levelled against the petitioner are related with the work of the petitioner from 2013 to 2016 and further charges are very serious in nature as the petitioner has been charged for causing financial loss to the State Government. Charge No. 1 levelled against the petitioner is in relation to the road widening and strengthening work of Bhawarnath-Tehbarpur Road and charge No. 2 is also in respect to the road widening and strengthening for making four lane road on Allahabad-Jaunpur-Azamgarh Road. It is further submitted that since charge sheet in respect to illegalities committed by the petitioner from the period 2013 to 2016 has been served to the petitioner on 11.5.2018 and further since till 11.5.2018 recommendation of the D.P.C. held on 5.12.2017 has not been implemented, therefore, the petitioner's case falls under clause-11 of the Government Order dated 28.5.1997. In these circumstances, unless the proceedings are finalized, the petitioner is not entitled for promotion. It has further been stated that clause-11 of the Government order dated 28.5.1997 provides that if a particular DPC has recommended for promotion of an employee but before implementation of the recommendation, if any, adverse material comes into light, which if would have been there before the DPC, in such a situation the recommendation of the DPC shall be kept in sealed cover, therefore, the present writ petition deserves to be dismissed.

11. The averments made in the counter affidavit have been rebutted in rejoinder affidavit and it has been stated that clause-11 of the government order dated 28.5.1997 , which has been relied upon by the concerned respondents for denying the benefit of promotion to the petitioner on the basis of adverse material which has only come to light subsequent to the recommendation for promotion of the petitioner already made by the DPC,merely talks about situations wherein a charge-sheet had already been issued to an employee prior to the date on which the DPC was held. As per aforesaid Clause-11, since such a charge-sheet could not be brought to the notice of the DPC for whatsoever reasons but was brought to its notice subsequently, in such situations the recommendation of the DPC may be kept in sealed cover, if the promotion has not already been granted. The interpretation as suggested by the respondents is not in consonance with the law laid down by the Hon'ble Supreme Court of India. Therefore, the stand of the respondents regarding non-implementation of the recommendation of D.P.C. is misconceived and untenable under law.

12. It has also been urged by Mr. Gaurav Mehrotra, learned counsel for petitioner that if the recommendation of D.P.C. is not implemented till 30.6.2018 then it will lose its value and the candidature of the petitioner would require to be considered again in the next recruitment year causing serious prejudice and injury to the petitioner.

13. As regard to the adoption of sealed cover procedure, it has been argued on behalf of the petitioner that the procedure for sealed cover method where disciplinary proceedings are pending against an employee is governed by the provisions of Government order dated 28.5.1997 and clause-2 of the said government order contemplates three contingencies when recommendation of the D.P.C. is to be kept in sealed envelope, namely (i) when the employee is under suspension, (ii) when the departmental proceedings are pending against the employee, to which a charge sheet has been issued; and (iii) when the charge sheet has been filed in criminal proceedings against the employee before the competent court and the same is pending. Therefore, on the date when the departmental proceedings were convened i.e. 5.12.2017, the petitioner was neither under suspension nor any charge sheet was issued in pursuance to the disciplinary proceedings initiated against the petitioner and further no criminal proceedings were pending against the petitioner.

14. It is further urged by learned counsel for petitioner that clause-11 of the Government Order dated 28.5.1997 is not attracted in the present case as the decision to initiate departmental proceedings was taken by the respondents on 11.5.2018 and charge sheet was also issued on the same day. Therefore, on the date of DPC i.e. 5.12.2017 none of the three conditions prescribed in Clause-2 of the government order dated 28.5.1997 were present.

15. Learned counsel for petitioner has further submitted that the provisions of government order dated 28.5.1997 were examined by this Court in Writ Petition No. 6760 (SS) of 2009 (Nand Kumar Singh Vs. State of U.P. and others). In this case, after recommendation of Departmental Promotion Committee held on 22.8.2009 of an employee holding the post of Inspector in Police department, a charge sheet was filed in court concerned on 2.9.2009, the court after examining the material negated the assertion of the State authorities, and directed to implement the recommendation of D.P.C. held on 22.8.2009.

16. The said order of learned Single Judge was challenged by the State-authorities in Special Appeal No. 478 of 2010 (State of U.P. and another Vs. Nand Kumar Singh) and the Division Bench after examining the provision of clause-2 and 11 of the said Government Order and appreciating the submission of learned counsel for appellants observed that the only way to harmonize with the rules, considering clause-2 and 11, is to hold that if on the date of D.P.C. there was a charge sheet and this was not within the knowledge of the selection committee even at the stage of issuing the letter of appointment, then the sealed cover procedure can be followed. Paragraph 6 and 7 of the said judgment is being reproduced as under:-

"6. On behalf of the appellants-State, what is sought to be contended, is that even after the selection and before the appointment letter is issued, if it comes to the notice of the Appointing Authority that there is a charge-sheet pending against the concerned employee, then also in that event, the sealed cover procedure must be followed. The question is as to whether this is the correct interpretation of Paragraph 11 of the Notification.

7. In our opinion, once three cases are manifest under which the sealed cover procedure has to be followed, Paragraph 11 will have to be considered in that context, otherwise this would result in adding another case. the only way to harmonize the rules, considering paragraphs 2 and 11, is to hold that if on the date of D.P.C. there was a charge sheet and this was not within the knowledge of the Selection Committee even at the stage of issuing the letter of appointment, the sealed cover procedure can be followed. In our opinion, this would be a proper and harmonious construction of the two rules."

17. It has further been submitted by the learned counsel for petitioner that against the said judgment, the State authorities filed Special Leave to Appeal (Civil) No. 5741/2013 (State of U.P. and another Vs. Nand Kumar Singh) and the same was dismissed as withdrawn on the request of learned counsel for the State-appellant vide order dated 18.3.2013 and therefore the aforesaid judgment has attained finality.

18. Shri Manjeev Shukla, learned Additional Chief Standing Counsel for the State has argued that clause-11 of the Government Order dated 28.5.1997 specifically provides that if any adverse material comes to the light of the authorities even after recommendation of the D.P.C. then implementation of the recommendation can be withheld and recommendation of the D.P.C. shall be treated to be kept in sealed envelope till the conclusion of the departmental proceedings arising out of the said adverse material against an employee.

19. In the present case, before issuance of the promotion letter, a decision has been taken vide order dated 11.5.2018 relating to illegalities committed by the petitioner from the period 2013 to 2016 and the charge sheet has also been issued on 11.6.2018. As the charges are serious in nature, and there is every likelihood of imposition of major penalty against the petitioner, therefore, there is no illegality or infirmity in withholding the recommendation of the selection committee and treating it to be kept in sealed envelope.

20. To strengthen his arguments, reliance has been placed upon a judgment of the case of Union of India Vs. Kewal Kumar reported in (1993) 3 SCC 204 wherein C.B.I. had recorded the FIR; sent the same to the superior authorities of the respondent for taking necessary action; and the competent authority had taken the decision, on the basis of the FIR, disciplinary proceedings against the respondent were initiated for imposition of major penalty and recommendation of DPC were ordered to be kept in sealed envelope in order to avoid promotion of the respondent, unless exonerated of those charges. The Apex Court did not find any illegality.

21. We have examined the submission of learned counsel for parties and gone through the record. Admittedly, in the present case, the D.P.C. was convened for the post of Chief Engineer (Level-II) on 5.12.2017 recommending the name of nine Superintending Engineers. All the recommended employees either have been promoted or have attained the age of superannuation in due course except the petitioner, whose recommendation has been withheld and is being treated to be kept in sealed envelope in the garb of Government Order dated 28.5.1997 on account of the fact that certain discrepancies committed by the petitioner during the period of 2013 to 2016 came into light after recommendation of the D.P.C. Therefore, a decision was taken on 11.5.2018 to initiate disciplinary proceedings against the petitioner and the charge sheet has also been issued on 11.5.2018.

22. Dealing with certain issues regarding promotion/non-promotion of an employee on the next higher post in case of pendency or initiation of disciplinary or criminal proceeding, Hon'ble Apex Court in the case of Union of India vs. K.V. Jankiraman AIR 1991 (4) SC 2010 has inter-Alia held that in case of pendency of criminal prosecution, the sealed cover procedure is to be resorted to. The Apex Court has approved the conclusions arrived at in the said case by the Full Bench of Central Administrative Tribunal wherein it was inter-alia held that consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of disciplinary or criminal proceedings against an official. Relevant paragraph-6 of the aforesaid judgment is quoted herein-below:-

"On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. 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. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the 800 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. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a, remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

(2)...............................................

(3)................................................

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before."

There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo /charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.

We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal."

23. Based on the aforesaid judgment of Hon'ble Apex Court, the personnel department of Government of U.P. has issued an office memorandum dated 28.05.1997 which is applicable to promotion of the government servants. The said Government Order dated 28.05.1997 provides that the Selection Committee shall consider the case for promotion of all the eligible employees, though against some of them inquiry such as miscellaneous inquiry, preliminary departmental inquiry, vigilance inquiry, formal disciplinary/ departmental inquiry or criminal prosecution may be pending or even if they are under suspension. The Government Order further provides that in case candidate concerned, whose case has been considered by the Selection Committee constituted for considering promotion, is under suspension or against whom departmental proceedings or proceedings of Administrative Tribunal are pending for which charge sheet has been issued or against whom criminal prosecution is pending i.e. to say charge sheet in the concerned court has been submitted, the recommendation of the Selection Committee shall be kept in a sealed cover. It further provides that in such a situation where sealed cover procedure is adopted, one vacancy shall be kept reserved which shall be filled only in a stop-gap-arrangement so that after conclusion of the inquiry against such a person, recommendation made by the Departmental Promotion Committee may be given effect to. The Government Order dated 28.05.1997 further provides that in case even after expiry of one year, the departmental proceeding or criminal prosecution is not concluded, the Selection Committee shall consider promotion of such an employee on ad hoc basis taking into account certain factors which have been given in the said Government Order. The said consideration is to be made only in case where the delay is not caused on account of non-co-operation of delinquent/ charged employee. The Government Order also provides that in case on technical grounds if such an ad hoc promotee is exonerated by the Court, then the competent authority will consider as to whether ad hoc promotion of such an employee is to continue or not and thereafter, final consideration is to be made only once when the departmental proceeding/criminal prosecution is concluded.

24. As regard the judgment rendered in Union of India Vs. Kewal Kumar (supra), which has been relied upon by the State Counsel, we are of the view that same is on a different footing as in the said case, in the office memorandum No. 22011/2/86/estt (A), dated January 12, 1988, there was a specific provision that government servant against whom, an investigation or serious allegations of corruption, bribery or similar grave misconduct is in progress either by the C.B.I. or by any other agency, departmental or otherwise, the sealed cover procedure is to be adopted.

25. It may be added that in the said case, the decision to initiate disciplinary proceedings was taken on the basis of F.I.R. lodged much earlier, charge sheet was actually issued after recommendation of D.P.C. and since there was a provision in the office memorandum dated 12.1.1998, therefore, Hon'ble Supreme court while setting aside the judgment and order of the Central Administrative Tribunal found the action of the authorities fully justified.

26. It may be pointed out that the case of Kewal Kumar (supra) was examined by the Apex Court later on, in the case of Union of India and others Vs. Sangram Keshari Nayak; (2007) 6 SCC 704 and while examining the provisions of office memorandum dated 12.1.1998, which has been examined and relied upon in the case of R.S. Sharma, H.C. Khurana and Kewal Kumar the Apex Court has observed that as the circular contains a provision of that nature which is absent in the present case, the said decision, in our opinion also has no application in the instant case. The relevant paragraph nos. 15 to 19 of the judgment read as under:-

15. Reliance placed by Mr Mohan on R.S. Sharma [(2000) 4 SCC 394] in our opinion, does not advance the appellant's case. In that case, cases where sealed cover procedure were applicable were contained in Para 2 of the office memorandum dated 12-1-1988 which reads as under: (SCC p. 396, para 5)

"Cases where ''Sealed Cover Procedure' applicable.--At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:

(i) government servants under suspension;

(ii) government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;

(iii) government servants in respect of whom prosecution for a criminal charge is pending or a sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;

(iv) government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by C.B.I. or any agency, departmental or otherwise."

(emphasis supplied)

16. Serious allegations of financial misdemeanors were made against the respondent therein. The Central Bureau of Investigation took up investigation. He was suspended on 10-3-1988. Although the said order of suspension was revoked, investigation continued. The DPC considered his case for promotion on 3-4-1991 and resorted to sealed cover procedure. Only in the aforementioned situation, K.V. Jankiraman [(1991) 4 SCC 109] and other decisions following the same stood distinguished opining that Para 7 of the said office memorandum would be attracted, which is in the following terms: (R.S. Sharma case [(2000) 4 SCC 394] , SCC p. 398, para 11)

"Sealed cover applicable to an officer coming under cloud before promotion.--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 DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by 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."

It was held: (R.S. Sharma case [(2000) 4 SCC 394] (SCC p. 399, para 15)

"One is that, what the Department did not do is not the yardstick indicated in Para 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the government servant who is not ''actually promoted' by that time. Second is that, the stand taken up by the Department is that in spite of deletion of Clause (iv) of the second para, the recommendations of DPC must remain in the sealed cover on account of the conditions specified in Clause (iii) of the said paragraph by virtue of the operation of Para 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991."

17. Therein H.C. Khurana [(1993) 3 SCC 196 and Kewal Kumar [(1993) 3 SCC 204 were noticed.

18. In H.C. Khurana [(1993) 3 SCC 196 : 1993 SCC (L&S) 736 : (1993) 24 ATC 763] the question was as to what would be the meaning of the word "issued" when a disciplinary proceeding had been initiated by framing the charge-sheet and the same had been dispatched. Para 2 of the circular letter in question was similar to R.S. Sharma [(2000) 4 SCC 394 : 2000 SCC (L&S) 653] . It is in that context, what would be the meaning of the word "issued" when the decision has been taken to initiate disciplinary proceeding came up for consideration. As the circular contained a provision of that nature which is absent in the present case, the said decision, in our opinion, also has no application in the instant case.

19. For the selfsame reasons, the decision of this Court in Kewal Kumar [(1993) 3 SCC 204 is also not attracted."

27. Needless to mention here that in the case of Coal India Ltd. and others versus Saroj Kumar Mishra (2007) 9 SCC 625 as well as in the case of Chairman-cum-Managing Director Coal India Limited and others Versus Ananta Saha and others (2011) 5 SCC 142 it has been reiterated that that there can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee.

28. The Hon'ble Supreme Court in the matter of Union of India and others vs. Dr. Sudha Salhan (Smt.) 1998 (3) SCC 394 while agreeing to the decision of Union of India vs. K.V. Jankiraman 1991 (4) SCC 109, referred to above, has held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority.

29. In view of the aforesaid facts, interpretation of provisions of Clause-11 of the Government Order dated 28.5.1997 as suggested by the State Counsel is an incorrect interpretation, which is not acceptable particularly in view of the verdict given by the co-ordinate Bench in the case of Nand Kumar Singh's case [supra]. Moreover, a bare perusal of Clause-11 of the said government order reveals that conditions which have been provided in Clause-2 are to be taken into consideration, if the same were present but some how could not be brought to the knowledge of the D.P.C., then the recommendation of the selection committee will be treated to be kept in a sealed cover.

30. In the present case, undisputedly, a decision to initiate disciplinary proceedings have been taken on 11.5.2018 and a charge sheet has been issued on the same date whereas the petitioner was recommended by the DPC on 5.12.2017 and such the adverse material said to be found, much later in April, 2018 that too after filing of the writ petition. The respondents have stated that the charges against the petitioner relate to the period from 2013 to 2016. In this connection, it may be pointed out that whether the charges relate to the time which is prior to the date on which the DPC was held or not is not be to be seen but the fact which is to be examined is the date on which the charge sheet was issued, which, undisputed, in the instant case is subsequent to the date on which the DPC was held and recommendation for promotion of the petitioner to the post of Chief Engineer (LEVEL-II) was made.

31. In view of the aforesaid discussions and legal position, the stand of the respondents is wholly unjustified and erroneous, which is legally not sustainable as we are of the considered opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to a higher post, if such a person is neither under suspension nor any charge sheet has been served; and is found suitable then the sealed cover procedure cannot be adopted. Consequently, we issue a writ of mandamus directing the respondents to implement the recommendation of the DPC dated 5.12.2017 forthwith and in any case prior to 30th June,2018.

32. It is clarified that we have not examined the legality of the departmental proceedings initiated against the petitioner vide order dated 11.5.2018 and the charge sheet having being issued on the same date. The State-authorities are at liberty to proceed with the departmental proceedings in accordance with law.

33. With the aforesaid directions, this writ petition is allowed.

Order Date :- 24.5.2018

Virendra