SHRI SANDEEP YADAV ALIAS YADAV SANDEEP G M vs CENTRAL BOARD OF EXCISE AND CUSTOM on 4 November 2026

O R D E R

SUDHI RANJAN MISHRA, MEMBER (J):

As per the pleadings and in course of argument, it is the case of the applicant that taking into consideration the decision of the Hon’ble Apex Court in the case of Union of India Etc. Etc vs K.V. Jankiraman Etc., 1991 AIR 2010, 1991, settling the law that it is only when a charge-memo in a disciplinary proceeding or a charge sheet in a criminal prosecution is issued to the employee, 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. The aforesaid principle has also been reiterated, time and again,

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in very many cases and it is still in force even till date. Accordingly, the DoP&T issued OM dated 14th September, 1992 enumerating therein as under: "2. At the time of consideration of the cases of Government servant for promotion, details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee: i) Government servants under suspension;

ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and iii) Government servants in respect of whom prosecution for criminal charge is pending. 2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the 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 to the grade/post of Shri in respect (name of the Government servant).

Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.'. The proceeding of the DPC need only contain the note. The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPС in respect of the suitability of a government servant for his promotion are kept in a sealed cover."

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2. After receiving references on the above subject, the DoP&T vide OM No. 22034/4/2012-Estt (D-II), the 23rd January, 2014 clarified that "where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior". Relevant portion of the OM dated 23rd January, 2014 is reproduced below:

2. This Department has been receiving references seeking clarification on grant of promotion in case of review DPC with regard to the official who is clear from vigilance angle on the date of promotion of the junior in the original DPC but subsequently attracts the provisions contained in para 2 of DoPT OM dated 14.09.92.

3. The matter has been examined in consultation with the Department of Legal Affairs and it is further clarified that, in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DOPT OM dated 14.9.92 get attracted on the date the actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002."

3. The above principle has been reiterated by the Hon'ble Apex Court vide order dated 24.09.2024 in the case of Union of India and Ors. Vs. Doly Loyi, in Civil Appeal No(s). 8387 of 2013

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holding that where charge sheet was served after the meeting of the DPC, adoption of 'sealed cover' procedure is unjustified and unsustainable on facts. Thus, the above principles are still in force being untouched in any subsequent decision. Whereas, according to the applicant, vide order dated 11.05.2018, he was placed under deemed suspension with effect from 30.04.2018 and the said order, on review, remained in force vide orders dated 23.7.2018, 22.01.2019, 22.7.2019, 15.01.2020, 17.07.2020 and 13.01.2021.

4. The Departmental Promotion Committee was held in December, 2018. On the recommendation of the DPC, his batchmates were promoted to Joint Commissioner vide order dated 01.01.2019. But, the recommendation of the DPC in his regard was kept in sealed cover since he was continuing under suspension. Thereafter, again DPC was held on 06.10.2019 & 06.12.2019 for promotion to Joint Commissioner against vacancy year 2020. His case was again considered but the same was kept in sealed cover since he was still continuing under suspension.

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Vide order dated 30.12.2019, his juniors were promoted to the rank of Joint Commissioner.

5. Applicant challenged his suspension/continued suspension in OA No. 617/2019. This Bench vide order dated 31.01.2020, quashed his order of suspension and its continuance thereafter. The order of this Bench dated 31.01.2020 in OA No. 617/2019 was challenged by the department before the Hon’ble High Court of Orissa in WP (C) No. 12861 of 2020. The Hon’ble High Court, vide order dated 31.07.2020 upheld the order of this Bench insofar as quashing of review order of suspension of applicant dated 22.07.2019 with effect from 24.07.2019 and kept the period of suspension from 30.04.2018 to 23.07.2019 alive. The said order of the Hon’ble High Court of Orissa was also upheld by the Hon’ble Apex Court vide order dated 18.01.2021 and, accordingly, the department implemented in paying and regularizing his period of suspension from 24.07.2019 vide order dated 18.06.2021. He filed OA No. 76/2020 praying that since his order of suspension was regularized from 24.07.2019 onwards and, that, there was no charge sheet either in disciplinary

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proceedings or in criminal case was issued till his juniors were promoted to Joint Commissioner, as per the law laid down in the cases of K.V. Jankiraman Etc. (supra), Doly Loyi (supra) and the DoP&T vide OM No. 22034/4/2012-Estt (D-II), the 23rd January, 2014, the respondents should open the sealed cover and act upon it. While the matter stood thus, on 27.02.2020 prosecution sanction in Criminal case was accorded and, on 09.12.2020, charge sheet under Rule 14 of CCS (CC&A) Rules, 1965 was issued to him.

6. He filed OA No. 381/2021 praying for full pay and allowances for the entire suspension period between 30.04.2018 to 23.07.2019, which was dismissed by this Bench on 18.08.2023. The applicant challenged the said order before the Hon’ble High Court of Orissa in W.P(C) No. 37720/2023 before the Hon’ble High Court of Orissa. Vide order dated 03.07.2024, OA No. 76/2020 was disposed of by this Bench holding that since the suspension of the applicant from 24.07.2019 was quashed by the Hon’ble High Court, which was upheld by the Hon’ble Apex Court, there being no order of suspension in the eyes of law, the

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respondents should take further course of action in opening the sealed cover of recommendations of DPC held on 06.10.2019 and 06.12.2019 in respect of the applicant. Vide order dated 13.09.2024, the respondents rejected the prayer for opening the sealed cover in compliance of the order of this Bench dated 03.07.2024, OA No. 76/2020, which order has been challenged by the applicant in this OA. Vide order dated 07.04.2026 in W.P(C) No. 37720/2023, the Hon’ble High Court of Orissa, quashed the order of this Bench dated 18.08.2023 in OA No. 381/2021 with direction to the respondents to treat the suspension period from 30.04.2018 to 23.07.2019 as duty period. The disciplinary proceedings so initiated against the applicant has also been quashed by this Bench vide order dated 23.04.2026 in OA No. 517/2024.

7. Hence, according to the applicant, on the recommendation of the Departmental Promotion Committee held in December, 2018, promotions of his batchmatch to Joint Commissioner vide order dated 01.01.2019, and, that of his juniors to the said post on 30.12.2019 on the recommendations of the DPC held on

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06.10.2019 & 06.12.2019 were effected. Since, his suspension from 30.04.2018 till his reinstatement ceased to exist on the strength of the order of the Hon’ble Court and, there being no charge sheet in criminal case or any departmental proceeding, as on the date of promotion of his batchmates and juniors on 01.01.2019 and 30.12.2019 respectively, in terms of the DoP&T OM No. 22034/4/2012-Estt (D-II), the 23rd January, 2014, respondents ought to have opened the sealed cover and acted upon the same because it was only on 27.02.2020 prosecution sanction in Criminal case was accorded and, on 09.12.2020, charge sheet under Rule 14 of CCS (CC&A) Rules, 1965 was issued to him. Hence, Ld. Counsel for the applicant has passionately prayed for appropriate direction to the respondents to open the sealed cover and act upon that keeping in mind the law laid down by the Hon’ble Apex Court in the cases of K.V. Jankiraman Etc. (supra), Doly Loyi (supra) and the DoP&T OM dated 23rd January, 2014 by quashing the order of rejection dated 13.09.2024 and grant him all consequential service and financial benefits retrospectively.

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8. The respondents’ Counsel stoutly opposed the prayer of the applicant by reiterating the stand taken in the counter inter alia stating that the applicant was considered for ad-hoc promotion to the grade of Joint Commissioner by the DPC held on 06.10.2019 for the vacancy year 2020, on which date, he was under suspension (since 30.04.2018). As per the conditions laid down in Para-2 of DoP&T OM dt. 14.09.1992, the recommendation of the DPC was kept in sealed cover to be opened only on the conclusion of the disciplinary case/criminal prosecution dropping of allegations against the Government servant. Since, he has not been exonerated in the criminal case and disciplinary proceedings, for which he was placed under suspension, question of opening the sealed cover does not arise. It is stated that as per the decision of the Hon'ble Apex Court in the case of K.V. Jankiraman (supra), an employee has no right to promotion. He has only a right to be considered for promotion. The least that is expected of an employee is to have an unblemished record. An employee found guilty of misconduct cannot be placed on par with other employees and his case has to

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be treated differently. The applicant was under suspension on the date of DPC, i.e. 06.12.2019, however his suspension was later revoked retrospectively, w.e.f. 24.07.2019, vide order dt. 18.06.2021 on the contrary, in the case of Doly Loyi (supra), there was no prosecution for criminal charge or disciplinary proceeding at the time of the DPC. The DoP&T OM dt. 23.01.2014, pertains to the procedure for review DPCs and there is no requirement for Review DPC in the present case. Accordingly, Ld. Counsel for the respondents submitted that there being no injustice caused in the decision making process of the matter, no judicial interference is called for and the OA being devoid of any merit is liable to be dismissed.

9. Heard Ld. Counsel for the parties and perused the materials placed on record so also the various orders/decisions cited by them.

10. It is not in dispute that on the recommendation of the DPCs held in December, 2018, his batchmates were promoted to the post of Joint Commissioner vide order dated 01.01.2019 and, on the recommendation of the DPC held on 06.10.2019 and

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06.12.2019 his juniors were promoted to the said post of Joint Commissioner vide order dated 30.12.2019. It is also not in dispute that the case of the applicant was duly considered by the DPC but the recommendation was kept in sealed cover following to the DoP&T OM dated 14.09.1992 due to his suspension/continued suspension. Admittedly, his suspension/continued suspension was washed out/became non- existence in compliance of the order of the Hon’ble High Court of Orissa dated 31.07.2020 in W.P(C) No. 12861/2020, which was upheld by the Hon’ble Apex Court, and order dated 07.04.2026 in W.P(C) No. 37720/2023. The DoP&T OM dated 23.01.2014 made it clear that where a junior has been promoted on the recommendations of the original DPC, the senior official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the said junior, even if the provisions of para 2 of DOPT OM dated 14.09.1992 get attracted on the date the actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002. Thus, we are of the considered view that after the period of suspension

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gets regularized, the recommendations of the DPCs, which were kept in the sealed covered, in respect of the applicant, needs to be opened and acted upon taking into consideration the vigilance angle existing till the date 01.01.2019 or 30.12.2019, as the case may be, i.e. the date of promotion of his batchmates/juniors. It is also clarified that as per the DoP&T OM and law laid down by the Hon’ble Apex Court in the cases of K.V.Jankiraman (supra) and Doli Loyi (supra), charge sheet issued long after the meeting of the DPC, the adoption of sealed cover procedure at the earlier stage of DPC is unjustified and unsustainable in law. In the instant case, the charge sheet both in criminal and departmental proceedings were being dated 27.02.2020 and 09.12.2020, and, the same cannot have any effect for consideration of the case of the applicant for promotion to Joint Commissioner based on the recommendations of the DPCs held on December, 2018, 06.10.2019 and 06.12.2019, more evidently, it is not in dispute that the departmental proceedings have already been quashed by this Bench vide order dated 23.04.2026 in OA NO. 517/2024. The foregoing discussions made above, gives us sufficient

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strength to come to an affirmative conclusion in favour of the applicant for opening the sealed cover of the DPCs held on December, 2018, 06.10.2019 and 06.12.2019 and acting upon that recommendations, if there is no impediment, taking into consideration the vigilance clearance as on the date of promotion of his batchmates/juniors vide orders dated 01.01.2019 and 30.12.2019 and, in the event of his promotion to the Joint Commissioner, he will be entitled to all service benefits retrospectively and, insofar as his pay in the promotional post is concerned, the same shall be on notional instead of actual basis. Ordered accordingly. The impugned order dated 13.09.2024 is hereby annulled. The entire exercise shall be completed within a period of 60 (sixty) days from the date of receipt of a copy of this order.

11. In the result, this OA stands allowed to the extent stated above. No costs. Pending MA, if any, stands disposed of.

(Pramod Kumar Das)

(Sudhi Ranjan Mishra) Member (Admn.)

Member (Judl.)

KB/PS

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