RBE No. 210/1988: Sealed Cover Procedure – Promotion from Group ‘B’ to Group ‘A’ or Within Group ‘A’

No.E(D&A)88 RG6-21, dated 21.09.1988

Sub: Promotion from Group ‘B’ to Group ‘A’ or Within Group ‘A’ of Railway Officers against whom disciplinary/ court proceedings are pending or whose conduct is under investigation – Procedure and guidelines to be followed.

1. In supersession of all relevant instructions on the above subject Board’s letters (i) No.E(D&A)77 RG6-1, dt. 03.11.1977, (ii) No.E(D&A)77 RG6-1, dt. 12.05.1978, (iii) No.E(D&A)82 RG6-28, dt. 20.09.1982 the procedure and guidelines to be followed in the matter of promotion from Group ‘B to Group ‘A’ and within Group ‘A’ of Railway officers against whom disciplinary/ court proceedings are pending or whose conduct is under investigation by the authorities concerned shall be as laid down in the Department of Personnel & Training’s enclosed Office Memorandum No.22011/2/86-Estt.(A), dated 12.01.1988 (except for para 5 thereof regarding the procedure for confirmation).

2. As for as the procedure in matter of confirmation is concerned, in the case of Railway Officers mentioned in item (i) to (iv) of para 2 of the DOP’s OM dated 12.01.1988, confirmation should be withheld till the finalization of the disciplinary proceedings/ criminal prosecutions. As regards other cases of investigation, confirmation should not be withheld merely because a regular case has been registered by the CBI or that complaints are being looked into in a departmental preliminary enquiry, unless and until on consideration of the results of the investigation, either by the CBI or any other agency or otherwise, the competent authority has formed the opinion that a charge-sheet may be issued to him on specific imputations where departmental action is contemplated or that sanction for prosecution may be accorded where prosecution is proposed.

Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
No.22011/2/86-Estt.(A), dated 12.01.1988
Office Memorandum

Sub: Promotion of Government Servants against whom disciplinary/ court proceedings are pending or whose Conduct is under investigation – Procedure and guidelines to be followed.

1. O.M.No.39/3/59-Estt.(A), dated 31.08.1960, 7/28/63-Estt.(A), dtd. 22.12.1964, 22011/3/77-Estt.(A), dated 14.07.1977, 22011/1/79-Estt.(A), dated 31.01.1982.
The undersigned is directed to refer to the Ministry of Home Affair’s OM No.39/4/56-Estt.(A), dated 3rd November, 1958, and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotions of Government servant against whom disciplinary/ court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment of the Supreme Court in Civil Appeal No.2964 of 1986 – Union of India and another v. Tajinder Singh, decided on 26.09.1986. As a result of the review and in supersession of all the earlier instructions on the subject, (referred to in the margin) the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.

2. Cases of Government Servants to whom Sealed Cover Procedure will be applicable:
At the time of consideration of the cases of Government servants for promotions, 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 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 the CBI or any other agency, departmental or otherwise.

2.1 Procedure to be followed by DPC in respect of Government servants under cloud:

The Departmental Promotion Committee shall assess the suitability of the 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 or contemplated against them or where the investigation in progress. 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 super scribed ‘Findings regarding suitability for promotion to the grade/ post of ………………………….In respect of Shri ……………………………….(name of the Government servant). Not to be opened till termination of the disciplinary case/ criminal prosecution/ investigation against Shri ……………………………………..The proceedings 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 DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.

2.2 Procedure by subsequent DPCs:
The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committee convened till the disciplinary case/ criminal prosecution/ investigation pending or contemplated against the Government servant concerned is concluded.

3. Action after completion of disciplinary case/ criminal prosecution:
On the conclusion of the disciplinary case/ criminal prosecution or an investigation which results in dropping of allegation or complaints against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/ covers and with reference to the date of promotion of his next junior on the basis of such position. The government servant may be promoted, if necessary, by reverting the junior-most officiating person. He may be promoted notionally with reference to the date of promotion of his junior but he will not be allowed any arrears of pay for the period proceedings the date of actual promotion.

3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the finding of the sealed cover/ cover(s) shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.

3.2 It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules, ‘Warning’ should not be issued as a result of such proceedings. If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of censure should be imposed.

4. Six monthly review of ‘Sealed Cover’ cases:
It is necessary to ensure that the disciplinary cases/ criminal prosecution/ investigation instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceeding should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the case of the Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which has adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should inter alia, cover the following aspects:-

(ii) Scrutiny of the material/ evidence collected in the investigation to take a decision as to whether there is a prima facie case for initiating disciplinary action or sanctioning prosecution against officer.

If, as a result of the review, the appointing authority comes to a conclusion in respect of cases covered by item (ii) above that there is no case for taking action against the Government servant concerned, the sealed cover may be opened and he may be given his due promotion with reference to the position assigned to him by the DPC.

5. Sealed cover procedure for confirmation:
The procedure outlined in the preceding para should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent vacancy should be reserved for such an officer when his case is placed in a sealed cover by the DPC.

6. Procedure for ad hoc promotion:
In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/ investigation/ criminal prosecution against the Government servant are not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion keeping in view the following aspects:

(a) Whether the promotion of the officer will be against public interest;
(b) Whether the charges are grave enough to warrant continued denial of promotion;
(c) Whether there is no likelihood of the case coming to a conclusion in the near future;
(d) Whether the delay is in the finalization of proceedings, departmental or in a court of law or the investigation is not directly or indirectly attributable to the Government servant concerned;
(e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/ criminal prosecution.

The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau. Where the investigation as contemplated in para 2(iv) above is still pending, the CBI or the other authorities concerned should be consulted.

6.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad hoc basis. Where the Government servant is considered for ad hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individual’s record of service without taking into account the pending disciplinary case/ criminal prosecution/ investigation against him.

6.2 After a decision is taken to promote a Government servant on an ad hoc basis, an order of promotion may be issued making it clear in the order itself that:

(i) The promotion is being made on purely ad hoc basis and the ad hoc promotion will not confer any right for regular promotion; and
(ii) The promotion shall be “until further orders”. It should also be indicated in the order that the Government reserve the right to cancel ad hoc promotion and revert at any time the Government servant to the post from which he was promoted.

6.3 If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings or the investigation did not lead to criminal prosecution/ disciplinary proceedings the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad hoc promotion with reference to his placement on the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.

6.4 If the Government servant is not acquitted on merits in the criminal prosecution but only on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad hoc promotion granted to him should be brought to an end.

7. Sealed cover applicable to officers 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 recommendation 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 the 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.

8. In so far as the personnel serving in the Indian Audit and Accounts Department are concerned, these instructions have been issued after consultation with the Comptroller and Auditor General of India.