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Sealed Cover Procedure in Promotions

As of figures in 2014 the Central government had 47 Lakh employees [1], which undoubtedly make it the biggest employer hitherto in the country. A huge chunk of population yearns to procure a job offered by Government of India(hereinafter referred to as government) due to various benefits including but not limited to job security, promotion at regular intervals, social status etc.

All the aspects relating to the course of employment in government jobs are governed by sundry executive orders and delegated legislations along with Central Civil Services( Classification, Control and Appeal) Rules 1965 [2] (hereinafter referred to as rules) promulgated by Departmental of Personnel and training under the aegis of Ministry of Personnel, Public Grievances and Pensions. These rules apply to every Government servant including every civilian Government servant in the Defence Services besides the exceptions enunciated under Part I clause 3.

This article would briefly discuss about when the procedure of ‘Sealed Cover’ is adopted by Departmental Promotion committees (DPC) of the government organizations, what is the consequence if a person’s name is put under a sealed cover and the law laid down by the apex court in this context.

Procedure in its entirety
Sealed cover procedure permits the question of promotion to be kept in abeyance till the result of any pending disciplinary inquiry/criminal prosecution against the employee. The concept of Sealed Cover was first adopted vide Office Memorandum dated 3rd November 1958 [3] keeping in mind the adverse effects that non-promotion could have on an employee future prospects without any fault of him. However the term ‘Sealed Cover’ was first used in Office Memorandum Dated 31st August 1960 [4].

It is a practice wherein the findings of DPC regarding suitability of a government employee for promotion are put under a sealed cover. As per Office Memorandum dated 14th September 1992 [5] this procedure is adopted when the government servant is falling in the consideration zone for promotion but:
  1. He is under suspension
  2. He has been issued a charge sheet and disciplinary proceedings are pending against him.
  3. He is facing a criminal prosecution.

DPC considers these employees on all other considerations sans disciplinary proceeding /criminal prosecution pending and record its observations inside a sealed cover. This procedure is continued till the proceedings against the concerned employee are not concluded.

It needs to be noted here that bare pendency of preliminary investigation is not sufficient and issuance of charge-sheet is mandatory for the appointing authorities to adopt the Sealed Cover Procedure. This also vindicates the fact that mere registration of an FIR against a government employee does not act as a barrier in consideration of his promotion.

Till the findings are kept in the sealed cover, the vacancy is filled on an officiating (temporary) basis. The sealed cover is opened and the recommendations are acted upon only if the employee is exonerated lock, stock and barrel in the proceedings pending against him. If any penalty, including censure, as specified in Rule 11 of Rules is imposed on the employee then the findings of Sealed Cover are not acted upon. His case then might be considered by next DPC apropos the penalty imposed on him in the disciplinary proceedings.

It is pertinent to note here that warnings, letters of caution, reprimands or advisories that are issued to Government servants for negligence, carelessness, lack of thoroughness, delay etc. to improve their efficacy does not constitute penalty and is not a bar for consideration for promotion as per Office Memorandum dated 7th July 2008 [6] which was reiterated vide Office Memorandum dated 6th December 2016.[7] It is also expounded in these memorandums that warnings are proscribed whenever a blame is attached to an employee after the conclusion of disciplinary proceedings and he should necessarily be awarded with penalty, at least censure, as prescribed under Rule 11.

The significant difference between ‘Censure’ and ‘warning’ is that the former is formally recorded in officer’s confidential roll and has an adverse bearing on future promotion prospects of an employee whereas latter is informal in nature and does not have any adverse consequences. It is apposite to mention here that mere recording of warning in a confidential roll does not convert it into a censure.

In case the sealed cover is opened, the officiating agreement is terminated and the exonerated employee gets the benefit of seniority and fixation of pay from the date his he otherwise would have been promoted if Sealed Cover Procedure was not adopted. With regards to arrears of salary the Supreme Court in the case of Union of India v K.V. Jankiraman [8] categorically held that:

The normal rule of no work no pay is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. The court in most unequivocal terms held that the employee has to be given the salary of the higher post along with all consequential benefits from the date his next junior was promoted unless the proceedings are delayed at the behest of employee or the non-availability of evidence is the result of acts attributable to him.

Ad-Hoc Promotion

The concept of Ad-Hoc Promotion was introduced to counter the menace of unduly long disciplinary proceedings. It delineates that if no conclusion is reached in the proceedings against the employee even after two years of sitting of first DPC in which his suitability was kept inside a sealed cover then that employee could be promoted on an ad-hoc basis subject to public interest and other conditions as mentioned in the Memorandum [9]. It is pertinent to note here that ad-hoc promotions do not confer any right for regular promotion. If the employee is exonerated to the hilt in the proceedings, his ad-hoc promotion would be morphed into a regular one from the date his junior was promoted on officiating basis.

Subsequent Clarifications

It was clarified vide Office Memorandum dated 21st November 2002 [10] that sealed procedure cannot be adopted by review DPC if there was no Departmental proceeding/criminal prosecution was pending against the employee when original DPC met.

After the judgement by the Apex Court in Delhi Jal Board v Mohinder Singh it was dilated vide Office Memorandum dated 24th February 2003 [11]  that Second departmental enquiry initiated after the exoneration in first one would not fetter the right of employee to get promoted and the findings of the sealed cover shall be acted upon.

Further vide Office memorandum dated 19th January 2017[12] it was elucidated that sealed cover may be opened if the employee is acquitted by the trial court in a criminal case and the order is not stayed by a higher court. But this provisional promotion is subject to the consequent outcome of appeal and if the employee stands convicted by the higher court then the promotion would be deemed as void ab initio.

End-Notes:
  1. https://www.prsindia.org/policy/vital-stats/overview-central-government-employees
  2. https://dopt.gov.in/ccs-cca-rules-1965
  3. http://documents.doptcirculars.nic.in/D2/D02est/39_4_56-Estt.A-031158.pdf
  4. http://documents.doptcirculars.nic.in/D2/D02est/39_3_59-Estt.A-310860.pdf
  5. http://documents.doptcirculars.nic.in/D2/D02est/22011_4_91-Estt.A-14091992.pdf
  6. http://documents.doptcirculars.nic.in/D2/D02est/11012_6_2008-Estt.(A)0001.pdf
  7. http://documents.doptcirculars.nic.in/D2/D02est/11012_12_2016-Estt.A-III-06122016.pdf
  8. Union of India v KV Jankiraman AIR 1991 SC 2010
  9. http://documents.doptcirculars.nic.in/D2/D02est/22011_4_91-Estt.A-14091992.pdf
  10. http://documents.doptcirculars.nic.in/D2/D02est/22011_2_99-Estt.A-21112002.pdf
  11. http://documents.doptcirculars.nic.in/D2/D02est/22011_2_2002-Estt-A.pdf
  12. http://documents.doptcirculars.nic.in/D2/D02est/11012_6_2016-Estt.A-III-19012017.pdf

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