HUSSAIN ALI A vs UT OF LAKSHADWEEP on 4 November 2026

O R D E R

Per: Justice Sunil Thomas, Judicial Member - The sole applicant presently working as an Assistant Commandant under the respondents is apprehending that he is likely to be reverted as Inspector (Executive) in purported implementation of the direction of this Tribunal in OA No. 59 of 2014, confirmed by the Hon'ble High Court in OP (CAT) No. 171 of 2017.

2. The applicant was initially appointed as a Sub Inspector of India Reserve Battalion on 18.10.1999. Thereafter, he was regularly promoted as an Inspector (Executive) by Annexure A3 order dated 17.05.2011. The applicant’s name is shown at serial number 7 in Annexure A3. The 3rd respondent’s name is shown at serial No. 5. Since he was facing disciplinary proceedings, it was prescribed in Annexure A3 that the result of the 3rd respondent was kept in sealed cover. The applicant was later promoted as Assistant Commandant by Annexure A4 order dated 14.07.2016. On completion of probation, he was confirmed by Annexure A5 order dated 27.01.2020.

3. While so, the 3rd respondent approached this Tribunal in OA No. 59 of 2014 contending that though he was issued with a major penalty memo in the year 2003, the enquiry proceedings were not completed promptly. However, he was imposed with a minor penalty of censure by order dated 02.07.2013. Since, he was imposed with a minor penalty of censure, he ought to have been promoted with effect from 17.05.2011 along with those who were promoted in Annexure A3, it was claimed.

4. By Annexure A1 order, this Tribunal held that respondent shall promote the 3rd respondent herein with effect from the day succeeding the imposition of penalty of censure subject to fulfilling all other conditions of DPC. Administration challenged Annexure A1 order in OP(CAT) No. 171 of 2017, which was dismissed by Annexure A2 judgment.

5. Apprehending that the decision has been taken to promote the 3rd respondent as Inspector (Executive), by reverting the applicant, Annexure A10 representation was submitted. According to the applicant, pursuant to the above, attempts are being made to revert the applicant and to promote the 3rd respondent. It was submitted that in the light of Annexures A6 to A9 OMs of the DoPT read with the decision of the Supreme Court in Union of India and Others v. A.N. Mohanan [(2007) 5 SCC 425], the 3rd respondent has no right to be considered in the DPC, which resulted in the promotion of the applicant. Since no action was taken on Annexure A10, the Original Application has been filed seeking the following reliefs:- “(i) Declare that the attempt on the part of the official respondents 1&2 to convene the Review DPC for the vacancies of Inspector (Executive) for which DPC had already met and Annexure -A3 orders of promotion issued, is arbitrary, discriminatory and unconstitutional and direct the respondents accordingly;

(ii) Declare that the third respondent has no right to be considered for promotion as Inspector (Executive), in the light of Annexure-A1 and A2 in preference to the applicant or by displacing the applicant and direct the respondents accordingly;

(iii) Direct the respondents to allow the applicant to continue as Assistant Commandant, IRBN retaining his substantive position acquired by virtue of his promotion ordered in Annexure-A5, and direct further to allow the applicant to continue accordingly, and to consider him for further promotion in accordance with law on that basis.”

6. Respondents Nos. 1 & 2 filed the reply statement contending that pursuant to the order of the CAT in OA No. 59 of 2014 as confirmed by the Hon'ble High Court of Kerala in OP(CAT) No. 171 of 2017, department has initiated action for promotion of the 3rd respondent with effect from 03.07.2013. Sanctioned posts of Inspector in IRBN is 7 and 6 posts of

Inspector was filled up by the department with effect from 13.05.2011 by DPC minutes dated 13.05.2011. The DPC minutes and promotion order were produced as Annexures R1(a) and R1(b).

7. While so, Shri. Bharath Kumar Dhirajilal Vaja, at serial No. 14 in Annexure R1(c) seniority list approached the CAT Mumbai Bench, by filing OA No. 628 of 2011 contending that DPC did not consider and follow the reservation policy and promoted all UR candidates as Inspector (Executive). The Tribunal disposed of the OA with a direction to give notional promotion with effect from 13.05.2011, and consequential benefits except back wages, as the 7th post was a reserved post for SC candidate and also to revert the person promoted vide 7th post by Annexure R1(d) judgment. Accordingly, Department by DPC meeting held on 29.11.2016 promoted Bharath Kumar Dhirajilal Vaja to the post of Inspector (Executive) with effect from 13.05.2011. Annexure R1(e) is the true copy of the DPC meeting dated 29.11.2016. However, in the DPC by minutes dated 29.11.2016 decided not to revert the 7th official in the list, on the basis that sealed cover of the 3rd respondent has become invalid as he was issued with censure in 2013. It was thereafter, that the respondent No.3 approached this Tribunal for direction to promote him to the post of Inspector (Executive). All the 7 Inspectors (Executive) were promoted with effect from 13.05.2011 to the rank of

Assistant Commandant vide Annexure R1(g) minutes dated 22.06.2016 and with effect from 05.12.2017 evidenced by Annexure R1(h).

8. To implement the order in OP(CAT) 17 of 2017, a fresh DPC meeting and review DPC meetings were held on 13.05.2011 and 29.11.2016 due to the errors occurred in both the DPCs. To rectify the said defects in both DPCs and since the 3rd respondent needs to be promoted as Inspector (Executive) with effect from 03.07.2013 and since there was no vacancy in the rank of Inspector (Executive) as on 03.07.2013 due to promotions given from time to time, the applicant herein needs to be reverted as the junior most official among UR category. To supplement the contention, the respondents relied on Annexure R1(i) OM dated 14th September 1992. It was hence contended that promotion of the applicant as Inspector vide order dated 02.05.2006 on the basis of the DPC meeting held on 13.05.2011 and from the post of Inspector to Assistant Commandant vide order dated 14.07.2016 on the basis of DPC meeting held on 22.06.2016 has to be treated as null and void. The 3rd respondent has to be promoted to the 5th post of Inspector (Executive) with effect from 03.07.2013. Since, the applicant and the 3rd respondent belong to UR category, the holder of 7th post cannot be reverted, as it was reserved for SC candidates.

9. The 3rd respondent filed a separate reply statement contending that the censure imposed on the 3rd respondent did not disqualify him from being considered for promotion. There was no adverse effect of censure, from the next day of its award, that is on 03.07.2013. Hence, by virtue of Annexures A1 and A2, the 3rd respondent is entitled to be promoted to the post of Inspector immediately upon the cessation of adverse effect of censure. Therefore, the sealed cover has to be opened and promotion granted, if he was found eligible and to hold a fresh DPC to review the earlier DPC of 13.05.2011. It was contended that the court order has precedence over all other rights of the applicant. It was also contended that the applicant had enjoyed the position during the said period. Hence, it was contended that the claim set up by the applicant was not sustainable.

10. Answering the reply statements, a rejoinder was filed by the applicant. It was stated that the inclusion of the 3rd respondent in promotion to the post of Inspector (Executive) with a clarification that the fate of the 3rd respondent was kept in sealed cover was absolutely a mistake. It was stated that it was contrary to the DoPT guidelines and the name of the 3rd respondent should not have figured in the promotion order, since, disciplinary proceedings were going on. When recommendations were kept in a sealed cover the 3rd respondent's name could not have been included in

Annexure A3 promotion list.

11. The order in OA No. 559 of 2014 was not a blanket direction. It stated that the 3rd respondent will be given promotion with effect from the date of succeeding the position of penalty “subject to fulfilling all other conditions of DPC ”. The direction does not mean that the 3rd respondent should be promoted from the next day succeeding the date of imposition of penalty of censure. It carried a rider that such consideration should be subject to fulfilling all other conditions of DPC. A plain reading of paragraphs 9, 10 and 11 of the order in O.A No. 59 of 2014 clearly indicates that the prayer for consideration of promotion in the DPC held on 13.05.2011 stands categorically rejected. Even in paragraph 12 of Annexure A1, it was specifically stated that the applicant therein was not totally exonerated meriting promotion with effect from the date of sealed cover procedure. It was also pointed out that consistent with the direction in Annexure A1 order of the Tribunal, the 3rd respondent was considered against a subsequent vacancy and was promoted later as Inspector (Executive) by Annexure A11 order dated 13.03.2018. Annexure A11 has not been challenged by the third respondent. It was hence, contended that the claims set up by the respondents was liable to be rejected.

12. Heard both sides and examined the records.

13. At the time of admission, taking note of the apprehension of the applicant that he was likely to be reverted under the guise of promoting the 3rd respondent in purported implementation of Annexures A1 and A2 orders, an interim order was granted directing that the applicant shall not be reverted.

14. The apprehension of the applicant is that in the light of Annexures A1 and A2 while giving effect promotion to the 3rd respondent, the applicant is liable to be reverted from the post of Inspector (Executive). In this regard it is pertinent to refer to the operative portion of Annexure A1 which, after referring to the case of the applicant therein who is the 3rd respondent herein, concluded that his case was not one in which he has been totally exonerated meriting promotion with effect from the date of sealed cover procedure. Hence, it was held as follows: “12. ……….. Hence, we direct the respondent to promote the applicant in the OA with effect from the day succeeding the imposition of the penalty of Censure, subject to fulfilling all other conditions of DPC.”

The apprehension of the applicant is that respondents Nos. 1 and 2 is trying to convene the DPC for promoting the 3rd respondent. By Annexure A3 the 3rd respondent who was at serial No. 5, was not considered for promotion and his case was kept in a sealed cover as disclosed in Annexure A3. The applicant who was at serial No. 7 was given promotion. It is also an admitted fact that there were 7 sanctioned posts of Inspector (Executive). In fact, only 6 persons were given promotion. However, later one Bharath Kumar Dhirajilal Vaja had approached the Mumbai Bench of this Tribunal which passed an order directing him to be appointed against the SC vacancy. Accordingly, he was accommodated against the 7th vacancy. Consequently, the contention of the respondents is that by giving effect to Annexures A1 and A2 the applicant who is the last person in the UR list is liable to be reverted.

15. This stand was resisted by the applicant by referring to Annexures A6 to A9 which are the DoP&T circulars and the decision of the Supreme Court in A.N. Mohanan’s case (supra). The contention of the applicant was that since the 3rd respondent has been imposed with the penalty of censure, he could not have been considered for promotion in a review DPC in relation to the DPC which ordered promotion of the applicant resulting in Annexure A3. It was also contended that Supreme Court has held in A.N. Mohanan’s case (supra) that censure was also a penalty. Supreme Court in the above decision held that penalty of censure renders DPC recommendations ineffective in view of paragraph 3.1 of the DoP&T OM dated 14.9.1992 and the claim for retrospective promotion on the basis of sealed cover recommendations cannot be considered and that he can only be given promotion from a future date. Annexure A6 is the OM dated 14.9.1992, which, based on directions of the Supreme Court in Union of India v. K.V. Jankiraman (AIR 1991 SC 2010) had laid down the procedure for assessing the suitability of a Government servant against whom disciplinary proceedings are pending. It was provided that the DPC shall in such cases assess the suitability of the Government servants coming within the purview of circumstances mentioned above, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including unfit for promotion and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed “findings regarding suitability for promotion”.

16. The contention of the learned counsel for the applicant in the light of A.N. Mohanan’s case (supra) cannot survive any longer in the light of Annexures A1 and A2. The claim of the 3rd respondent for retrospective promotion with effect from the date of DPC proceeding which resulted in sealed cover procedure was declined and it was directed that the 3rd respondent can be promoted only from the next day following the imposition of the penalty of censure. Further, by virtue of Annexures A1 and A2 the order has become final and the conclusions arrived at therein cannot be agitated in this present proceedings. Hence, that contention will not survive now. Paragraph 7(f) of OM dated 21.11.2016, a copy of which was produced at the time of hearing states as follows: “7(f) If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he / she is found guilty in the criminal prosecution against him / her, the findings of the sealed cover / covers shall not be acted upon. His / her case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him / her [paragraph 3.1 of DoPT OM dated 14.9.1992].”

Paragraph 7(g) provides as follows:

“7(g) In assessing the suitability of the officer on whom a penalty has been imposed, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of general service record of the officer and the fact of imposition of penalty, the officer should be considered for promotion……..”

17. In the case at hand Annexure A3 clearly shows that the DPC held therein had committed an error in relation to 3rd respondent. In fact, the Annexure A3 is an order of promotion of 7 persons which includes the 3rd respondent also. The order states that on the recommendation of the Departmental Promotion Committee, the persons mentioned therein were promoted to the rank of Inspector (Executive) on regular basis with effect from the date of DPC. The name of the 3rd respondent is at serial No. 5. Against his name in remarks column it is mentioned as “kept in sealed cover”. The inclusion of the name of the 3rd respondent in the office order promoting others on the recommendation of the DPC is clearly contrary to the procedure in Annexure A6 OM. In fact, 3rd respondent’s case ought to have been considered by the DPC and whether he is found fit or unfit should have been kept in a sealed cover.

18. The learned counsel for the applicant also invited our attention to Annexure A11 office order dated 13.3.2018 by which on the basis of the recommendations of the DPC held subsequent to Annexures A1 and A2, the 3rd respondent was promoted along with few other persons against the vacancies that have subsequently arisen. However, the basic contention of the 3rd respondent was that he ought to have been promoted with effect from the next day following 2.7.2013, on which day, he was imposed with penalty of censure.

19. The position that now emerges is that the disciplinary proceedings pending at the time of Annexure A3 ended in an imposition of penalty of censure. Hence, the sealed cover procedure referred to in Annexure A3 has lost its significance. The 3rd respondent became eligible for being considered in the DPC, held after the date of imposition of penalty. Even in Annexure A1 order, this Tribunal only held that 3rd respondent can be promoted with effect from the day succeeding the imposition of penalty of censure, subject to other conditions of DPC. Hence, review DPC will have to be convened in relation to the DPC held for consideration of vacancy arising after the date of imposition of penalty and he may be considered. Hence, it is held that for considering the case of 3rd respondent, the DPC that resulted in Annexure A3 cannot be reviewed. It is clarified accordingly and relief No. (i) in the OA is allowed.

20. The Original Application is allowed to the above extent. No order as to costs.

(Dated, this the 4th day of November, 2026)

BRAJ MOHAN AGRAWAL JUSTICE SUNIL THOMAS ADMINISTRATIVE MEMBER JUDICIAL MEMBER

rkr/skm/SA

List of Annexures in OA No. 181/203/2025 Annexure-A1: A true copy of the order of this Tribunal in O.A.No. 181/59/2014 dated 09.12.2016.

Annexure-A2: A true copy of the judgement of the Hon'ble High Court in O.P.(CAT) No.171/2017 dated 15.01.2025.

Annexure-A3: A true copy of the office order bearing F.No.02/05/2006 - IRBN(1) dated 17.05.2011, issued by the second respondent.

Annexure-A4: A true copy of the office order F.No.1/1/2016-IRBN/874 dated 14.07.2016, issued by the second respondent.

Annexure-A5: A true copy of the office order bearing F.No.01/1/2016- IRBn dated 27.01.2020, issued by the second respondent.

Annexure-A6: A true copy of the O.M. No.22011/4/91- Estt.(A) dated 14.09.1992 issued by the DoP&T Along With typed copy.

Annexure-A7: A true copy of the DoP&T's O.Μ. No.22012/1/99-Estt. (D) dated 25.10.2004.

Anenxure-A8 : A true copy true of the DoP&T's Ο.Μ.Νο.22034/5/2004- Estt. (D) dated 15.12.2004.

Annexure-A9: A true copy of the DoP&T's O.M. No.11012/6/2008 Estt.(A) dated 07.07.2008.

Annexure-A10: A true copy of the representation dated 14.05.2025 addressed to the first respondent.

Annexure-A11: A true copy of the office order bearing F.No.I/3/2016- IRBn/167 dated 13.03.2018 issued by the Secretary (Home), U.T. of Lakshadweep.

Annexure- R1(a): True copy of DPC minutes dated 13.05.2011.

Annexure R1(b): True copy of promotion order issued vide order F.No.2/5/2006-IRBn (1) dated: 17.05.2011

Annexure R1(c): True copy of the seniority list F.No.2/5/2006-IRBN dated 19.04.2011

Annexure R1(d): True copy of the judgment in OA 628 of 2011 dated 26.08.2016

Annexure R1(e): True copy of DPC meeting dated 29.11.2016

Annexure R1(f): True copy of the judgment dated 15-01-2025 OP CAT No. 171/2017

Annexure R1(g): True copy of DPC Minutes dated: 22.06.2016

Annexure R1(h): True copy of DPC Minutes dated 05.02.2017

Annexure R1(i): True copy of OM No.22011/4/91-Estt.(A) dated 14th September 1992

Annexure R3(a): True copy of CVC Circular No. 2/12/21 dated 03.12.2021.

Annexure R3(b): Interion Order in OA 203/2025 Dated 19-05-2025

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