Main Article - Jul, 2005
SEALED COVER PROCEDURE
By
Ch. Srinivasa Rao, Under Secretary, CSIR, New Delhi
Introduction
The conditions of service of Govt. servants are regulated under Article 309 and provisions of the various Articles of the Constitution of India; the statutory rules; and the executive instructions issued to provide explanation on various rules, etc. As far as the discipline is concerned, the Council servants are basically governed by the CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965.
Similarly the rights of Council servants are also equally protected. A Council servant who is otherwise eligible to be considered for promotion by DPC/Assessment Committee but for his being under “cloud” would also stand equal chance till he is proved guilty. The Committee is required to assess the suitability of such Council servant without taking into consideration the disciplinary case/criminal prosecution pending against him.
Scope
The Scientific & Technical staff of CSIR including those covered under Erstwhile Bye-Law 71 (b) are governed by “Flexible Complementing System” while the administrative staff is covered by Departmental Promotion Committee for their promotion to the next higher grade.
Assessment of S&T staff members who are under suspension or against whom disciplinary proceedings are pending shall be regulated as per the procedure notified vide CSIR Circular Lrs. No. 17/66/04-PPS dated 8-5-1998 and 2-8-2000.
Procedure
Sealed cover procedure has to be adopted by the Committee while considering the cases of employees who are under cloud. On the date of meeting of the Committee, if the Council servant is: (a) under suspension; (b) against whom a charge sheet has been issued and disciplinary proceedings are pending; or (c) against whom prosecution has been launched/sanctioned; the recommendations of the Committee have to be kept in "sealed cover" irrespective of the fact that the promotion is due from the date when none of these contingencies was in existence.
If any of the contingencies as mentioned above arise after the meeting of the Committee but before notifying the promotions, the findings of the Committee in respect of that employee have to be kept in sealed cover. Only in such cases, the vigilance clearance has to be withheld and the competent authority has to be informed about the same.
Employees who are undergoing a penalty imposed by a Disciplinary Authority or sentence ordered by a Court of Law In the matter of CBI investigation or otherwise, the Council is within its right to suspend the official. In that case, the Officer’s case for promotion would automatically be required to be placed in the sealed cover.
The sealed cover has to be superscribed "Findings regarding suitability for promotion to the grade / post ..(designation)..in respect of Shri(name of the employee)… Not to be opened till the termination of the disciplinary case/ criminal prosecution against Shri …(name of the employee). Similarly, the proceedings of the Committee have to contain a note stating that "the findings are contained in the attached sealed cover".
Till the disciplinary case is concluded against such employee, the Committees should continue to follow the sealed cover procedure in its subsequent meetings.
While the findings are kept in a sealed cover, simultaneously a post is kept vacant for him. If it is required, such post can be filled in an officiating capacity only.
In cases where a minimum period of service is prescribed for promotion to the next higher grade while the Council servant under suspension could not put in necessary service on account of his being on suspension, the period of suspension will be reckoned towards the minimum period of service referred to above for purpose of determining his eligibility for promotion to the higher grade, provided that it was found to be wholly unjustified to keep him under suspension, and when an Officer junior to him was promoted to the next higher grade.
Vigilance clearance
Hon'ble Supreme Court in a case (AIR 1991 SC 2010) ruled that an employee who is otherwise eligible and who is not undergoing any penalty under the rules governing disciplinary proceedings should also be considered for promotion by the Committee, if he fulfils the eligibility criteria.
Vigilance clearance/status has nothing to do in deciding the fitness of the Officer for promotion as it would not have any significance. Promotion cannot be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet, etc.
Govt. of India have ordered preparation of Agreed List in respect of those with doubtful integrity and those who are undergoing major penalty. Inclusion in Agreed List/list of Officers of doubtful integrity, pending investigation, will not bar the promotion of an employee and the
Vigilance Officer has to accord unqualified vigilance clearance to such Officers.
The Vigilance Officer has to ensure that there is no delay in issuing the charge sheet after a decision has been taken to initiate penalty proceedings. Any delay resulting in promotion of the erring public servant shall be construed as a deliberate attempt.
Post-clearance situation
If one of the above three conditions which requires placing the recommendations of the Committee in sealed cover arise only after the Committee has made its recommendations, it shall be deemed to have been placed in the sealed cover; and it will not be declared until he is exonerated of the charges.
By
Ch. Srinivasa Rao, Under Secretary, CSIR, New Delhi
Introduction
The conditions of service of Govt. servants are regulated under Article 309 and provisions of the various Articles of the Constitution of India; the statutory rules; and the executive instructions issued to provide explanation on various rules, etc. As far as the discipline is concerned, the Council servants are basically governed by the CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965.
Similarly the rights of Council servants are also equally protected. A Council servant who is otherwise eligible to be considered for promotion by DPC/Assessment Committee but for his being under “cloud” would also stand equal chance till he is proved guilty. The Committee is required to assess the suitability of such Council servant without taking into consideration the disciplinary case/criminal prosecution pending against him.
Scope
The Scientific & Technical staff of CSIR including those covered under Erstwhile Bye-Law 71 (b) are governed by “Flexible Complementing System” while the administrative staff is covered by Departmental Promotion Committee for their promotion to the next higher grade.
Assessment of S&T staff members who are under suspension or against whom disciplinary proceedings are pending shall be regulated as per the procedure notified vide CSIR Circular Lrs. No. 17/66/04-PPS dated 8-5-1998 and 2-8-2000.
Procedure
Sealed cover procedure has to be adopted by the Committee while considering the cases of employees who are under cloud. On the date of meeting of the Committee, if the Council servant is: (a) under suspension; (b) against whom a charge sheet has been issued and disciplinary proceedings are pending; or (c) against whom prosecution has been launched/sanctioned; the recommendations of the Committee have to be kept in "sealed cover" irrespective of the fact that the promotion is due from the date when none of these contingencies was in existence.
If any of the contingencies as mentioned above arise after the meeting of the Committee but before notifying the promotions, the findings of the Committee in respect of that employee have to be kept in sealed cover. Only in such cases, the vigilance clearance has to be withheld and the competent authority has to be informed about the same.
Employees who are undergoing a penalty imposed by a Disciplinary Authority or sentence ordered by a Court of Law In the matter of CBI investigation or otherwise, the Council is within its right to suspend the official. In that case, the Officer’s case for promotion would automatically be required to be placed in the sealed cover.
The sealed cover has to be superscribed "Findings regarding suitability for promotion to the grade / post ..(designation)..in respect of Shri(name of the employee)… Not to be opened till the termination of the disciplinary case/ criminal prosecution against Shri …(name of the employee). Similarly, the proceedings of the Committee have to contain a note stating that "the findings are contained in the attached sealed cover".
Till the disciplinary case is concluded against such employee, the Committees should continue to follow the sealed cover procedure in its subsequent meetings.
While the findings are kept in a sealed cover, simultaneously a post is kept vacant for him. If it is required, such post can be filled in an officiating capacity only.
In cases where a minimum period of service is prescribed for promotion to the next higher grade while the Council servant under suspension could not put in necessary service on account of his being on suspension, the period of suspension will be reckoned towards the minimum period of service referred to above for purpose of determining his eligibility for promotion to the higher grade, provided that it was found to be wholly unjustified to keep him under suspension, and when an Officer junior to him was promoted to the next higher grade.
Vigilance clearance
Hon'ble Supreme Court in a case (AIR 1991 SC 2010) ruled that an employee who is otherwise eligible and who is not undergoing any penalty under the rules governing disciplinary proceedings should also be considered for promotion by the Committee, if he fulfils the eligibility criteria.
Vigilance clearance/status has nothing to do in deciding the fitness of the Officer for promotion as it would not have any significance. Promotion cannot be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet, etc.
Govt. of India have ordered preparation of Agreed List in respect of those with doubtful integrity and those who are undergoing major penalty. Inclusion in Agreed List/list of Officers of doubtful integrity, pending investigation, will not bar the promotion of an employee and the
Vigilance Officer has to accord unqualified vigilance clearance to such Officers.
The Vigilance Officer has to ensure that there is no delay in issuing the charge sheet after a decision has been taken to initiate penalty proceedings. Any delay resulting in promotion of the erring public servant shall be construed as a deliberate attempt.
Post-clearance situation
If one of the above three conditions which requires placing the recommendations of the Committee in sealed cover arise only after the Committee has made its recommendations, it shall be deemed to have been placed in the sealed cover; and it will not be declared until he is exonerated of the charges.
If there has been considerable gap between the date of the meeting and notification of promotion, it is necessary to ensure that there is no vigilance case in respect of the employees empanelled for promotion. Hence, it is desirable to seek vigilance clearance once again before issuing promotion order in respect of any Officer.
Conclusion of disciplinary action
On exoneration: If the employee is completely exonerated or suspension is held unjustified upon conclusion of the proceedings, the recommendation in the "sealed cover" would be acted upon. If recommended for promotion, the employee would be allowed the benefit of notional promotion from due date. In so far as the payment of arrears for the period of notional promotion is concerned, the question or the extent thereof will be decided by the Disciplinary Authority by taking into consideration all facts and circumstances of disciplinary/ criminal prosecution. Wherever arrears of salary or part of it are denied, the authority shall record reasons for doing so after affording opportunity to the employee concerned by issuing a show-cause notice.
The Committee after taking into consideration all the aspects shall give specific recommendations for promotion or otherwise from the due date. Even if the employee is recommended for promotion from his due date, the pay on promotion will be fixed notionally from the due date but actual monetary benefit shall accrue only from the date of completion/expiry of the currency of the penalties imposed.
In case of imposition of penalties
Censure or recovery of pay: In case the disciplinary proceedings result in imposition of penalty of "Censure" or "Recovery from pay of the whole or part of any pecuniary loss caused to the Council by the official's negligence or breach of orders", the case has to be placed, as far as possible, before the same Assessment Committee for the relevant year for review with reference to the original recommendations kept in the sealed cover, the circumstances leading disciplinary action and the penalty imposed, the effective date of promotion, if recommended, will be the date immediately after the completion of the period of penalty. While notional benefit will accrue only from the shifted due date of assessment promotion, the monetary benefit will accrue only with effect from the date following the date of issue of such orders imposing penalty.
Withholding increments: In the event of penalty of "Withholding increments of pay", the sealed cover containing findings of the Assessment Committee will be placed before the same Assessment Committee, as far as possible, for relevant years. In case the assessee is recommended for promotion by the earlier Committee, the Committee after considering the penalty and the charges against the assessee will give its recommendation whether the assessee is to be promoted from the actual due date or otherwise. In case, the promotion has not been recommended by the earlier Committee, the case for the next chance will be processed as per provisions of the assessment scheme.
Reducing to a lower stage: The same procedure shall be followed in the case of penalty of "Reducing to a lower stage in the time scale of pay" is imposed as specified in Rule 11 (iii) (a) of CCS (CCA) Rules, 1965, except that the monetary benefit of the assessment promotion shall accrue only after expiry of the penalty.
Withholding promotion: In case the penalty of "Withholding of promotion" is imposed, the Disciplinary Authority while passing the orders will clearly indicate therein the date of effect of the penalty and also the date on which the said assessee shall become due for his assessment consequent upon imposition of such penalty, implying thereby shifting of due date by the period of penalty. In such case, the findings in the sealed cover will not be acted upon and the assessment shall be taken up afresh from the shifted due date.
Reduction to lower time scale: In the event of imposition of penalty of "Reduction to a lower time-scale of pay/ grade/post or service" for a specified period, the sealed cover will not be opened and the assessee will be assessed only from the date following the date of expiry of the penalty.
Compulsory retirement, etc.: In case disciplinary proceedings/court case result in imposition of the major penalties of "Compulsory retirement/removal/dismissal", the sealed cover will not be opened as the assessee will cease to be entitled to the assessment.
Review of cases of sealed cover
It should be seen that the disciplinary case against Council servant is not unduly prolonged. Efforts should be made expeditiously by the Disciplinary Authority to review the case on expiry of six months from the date of convening the meeting of the Committee. In order to take a decision as to whether there is a prima facie case for initiating disciplinary action against the Council servant, the evidence collected in the investigation has to be scrutinized. If it is concluded that there is no case for taking action against the Council servant, the sealed cover may be opened; and if recommended for promotion, he may be promoted on ad hoc basis with reference to the position assigned to him by the Committee.
There might be certain cases where even after two years after the date of meeting of the first Committee the disciplinary proceedings against the Council servant might not have been concluded. The disciplinary authority may review the case to consider the desirability of giving him ad hoc promotion while keeping in view the following:
i) whether the promotion of the Officer will be against public interest;
ii) whether the charges are grave enough to warrant continued denial of promotion;
iii) whether there is no likelihood of the case coming to a conclusion in the near future;
iv) whether the delay is departmental or the case being sub judice, and is not directly or indirectly attributable to the Council servant; and
v) whether there is any likelihood of misuse of official position which the Council servant may occupy after ad hoc promotion which may adversely affect the conduct of the case.
If the case is pending with CBI, the Disciplinary Authority should take their views in to account before reviewing the case. If it is considered that it would not be against the public interest to allow ad hoc promotion to the Council servant, his case should be placed before the Committee at its ensuing meeting in normal course after expiry of the two years period. Then the Committee has to assess the suitability of the Council servant on the basis of the totality of the individual’s record of service without taking in to account the pending disciplinary case against him.
Conclusion of disciplinary action
On exoneration: If the employee is completely exonerated or suspension is held unjustified upon conclusion of the proceedings, the recommendation in the "sealed cover" would be acted upon. If recommended for promotion, the employee would be allowed the benefit of notional promotion from due date. In so far as the payment of arrears for the period of notional promotion is concerned, the question or the extent thereof will be decided by the Disciplinary Authority by taking into consideration all facts and circumstances of disciplinary/ criminal prosecution. Wherever arrears of salary or part of it are denied, the authority shall record reasons for doing so after affording opportunity to the employee concerned by issuing a show-cause notice.
The Committee after taking into consideration all the aspects shall give specific recommendations for promotion or otherwise from the due date. Even if the employee is recommended for promotion from his due date, the pay on promotion will be fixed notionally from the due date but actual monetary benefit shall accrue only from the date of completion/expiry of the currency of the penalties imposed.
In case of imposition of penalties
Censure or recovery of pay: In case the disciplinary proceedings result in imposition of penalty of "Censure" or "Recovery from pay of the whole or part of any pecuniary loss caused to the Council by the official's negligence or breach of orders", the case has to be placed, as far as possible, before the same Assessment Committee for the relevant year for review with reference to the original recommendations kept in the sealed cover, the circumstances leading disciplinary action and the penalty imposed, the effective date of promotion, if recommended, will be the date immediately after the completion of the period of penalty. While notional benefit will accrue only from the shifted due date of assessment promotion, the monetary benefit will accrue only with effect from the date following the date of issue of such orders imposing penalty.
Withholding increments: In the event of penalty of "Withholding increments of pay", the sealed cover containing findings of the Assessment Committee will be placed before the same Assessment Committee, as far as possible, for relevant years. In case the assessee is recommended for promotion by the earlier Committee, the Committee after considering the penalty and the charges against the assessee will give its recommendation whether the assessee is to be promoted from the actual due date or otherwise. In case, the promotion has not been recommended by the earlier Committee, the case for the next chance will be processed as per provisions of the assessment scheme.
Reducing to a lower stage: The same procedure shall be followed in the case of penalty of "Reducing to a lower stage in the time scale of pay" is imposed as specified in Rule 11 (iii) (a) of CCS (CCA) Rules, 1965, except that the monetary benefit of the assessment promotion shall accrue only after expiry of the penalty.
Withholding promotion: In case the penalty of "Withholding of promotion" is imposed, the Disciplinary Authority while passing the orders will clearly indicate therein the date of effect of the penalty and also the date on which the said assessee shall become due for his assessment consequent upon imposition of such penalty, implying thereby shifting of due date by the period of penalty. In such case, the findings in the sealed cover will not be acted upon and the assessment shall be taken up afresh from the shifted due date.
Reduction to lower time scale: In the event of imposition of penalty of "Reduction to a lower time-scale of pay/ grade/post or service" for a specified period, the sealed cover will not be opened and the assessee will be assessed only from the date following the date of expiry of the penalty.
Compulsory retirement, etc.: In case disciplinary proceedings/court case result in imposition of the major penalties of "Compulsory retirement/removal/dismissal", the sealed cover will not be opened as the assessee will cease to be entitled to the assessment.
Review of cases of sealed cover
It should be seen that the disciplinary case against Council servant is not unduly prolonged. Efforts should be made expeditiously by the Disciplinary Authority to review the case on expiry of six months from the date of convening the meeting of the Committee. In order to take a decision as to whether there is a prima facie case for initiating disciplinary action against the Council servant, the evidence collected in the investigation has to be scrutinized. If it is concluded that there is no case for taking action against the Council servant, the sealed cover may be opened; and if recommended for promotion, he may be promoted on ad hoc basis with reference to the position assigned to him by the Committee.
There might be certain cases where even after two years after the date of meeting of the first Committee the disciplinary proceedings against the Council servant might not have been concluded. The disciplinary authority may review the case to consider the desirability of giving him ad hoc promotion while keeping in view the following:
i) whether the promotion of the Officer will be against public interest;
ii) whether the charges are grave enough to warrant continued denial of promotion;
iii) whether there is no likelihood of the case coming to a conclusion in the near future;
iv) whether the delay is departmental or the case being sub judice, and is not directly or indirectly attributable to the Council servant; and
v) whether there is any likelihood of misuse of official position which the Council servant may occupy after ad hoc promotion which may adversely affect the conduct of the case.
If the case is pending with CBI, the Disciplinary Authority should take their views in to account before reviewing the case. If it is considered that it would not be against the public interest to allow ad hoc promotion to the Council servant, his case should be placed before the Committee at its ensuing meeting in normal course after expiry of the two years period. Then the Committee has to assess the suitability of the Council servant on the basis of the totality of the individual’s record of service without taking in to account the pending disciplinary case against him.
Post-review action
If the Committee recommends promotion, the order notifying such promotion should make it clear that:
i) the promotion is being made on purely ad hoc basis and the promotion will not confer any right for regular promotion; and
ii) the promotion shall be “until further orders” and that the Disciplinary Authority reserves the right to cancel the same at any time and revert the Council servant
If the Council servant is acquitted on the merits of case or fully exonerated, the ad hoc promotion will be confirmed with all attendant benefits.
On conclusion of the disciplinary proceedings, if the Council servant is not fully exonerated in the departmental proceedings, the ad hoc promotion should be cancelled.
Prosecution
If the Council servant is acquitted purely on “technical grounds” and not on “merit” in the criminal prosecution, and if the Council either proposes to take up the matter to a higher court or to proceed against him departmentally, the ad hoc promotion accorded to him will be cancelled.
Regular promotion
If the Council servant is eligible for regular promotion from a date prior to the date of ad hoc promotion with reference to his placement in the Committee proceedings kept in the sealed cover and the actual date of promotion of the person ranked immediately junior to him by the same Committee, he would be allowed his due seniority and benefit of notional promotion.
On promotion, his pay gets fixed by grant of premature increments by the competent authority in terms of FR 27 at the stage the pay would have reached had he been promoted from the date the Officer immediately below him was promoted. No arrears would be admissible on such promotion. The seniority of the Officer will be determined in the order in which his name has been placed in the select list on review.
Seniority on delayed promotion
A Council servant on whom a minor penalty of withholding of increment, etc. has been imposed should also be considered for promotion by the Committee if it meets after imposition of said penalty. If he is considered fit for promotion despite the imposition of penalty, the promotion may be given effect to after the expiry of the penalty and his seniority would be fixed according to his position in that panel.
Review DPC
The sealed cover procedure cannot be resorted to by the Review DPC, if no departmental proceedings or criminal prosecution was pending against the Council servant concerned or he/she was not under suspension at the time of meeting of the original Committee or before promotion of his junior on the basis of the recommendations of the original Committee.
Service eligibility
The service eligibility in the promotional grade for further promotion shall commence only from the date of actual promotion. It should not be related even notionally to the date of promotion of the junior in the panel.
References
1. Swamysnews, May 1993, 258
2. GI MPPG&P DP&T OM No.20011/2/ 92-Estt.(D) dt. 30-11-1995; CSIR Lr. No.1(91)/ 85-O&M dt. 15-12-1995]
3. "Swamy's Compilation on Seniority and Promotion in Central Government Service (1997), Muthuswamy and Brinda, Swamy Publishers (P) Ltd., Chennai
4. "A Complete Book on Disciplinary Proceedings" (1999), D.B. Khanna, New Delhi
5. CSIR Lrs. No. 17/66/04-PPS dated 8-5-1998 and 2-8-2000
6. GoI DP&T OM No.22011/2/99-Estt.(A) dt. 21-11-2002; Swamysnews, Jan. 2003, 18
If the Committee recommends promotion, the order notifying such promotion should make it clear that:
i) the promotion is being made on purely ad hoc basis and the promotion will not confer any right for regular promotion; and
ii) the promotion shall be “until further orders” and that the Disciplinary Authority reserves the right to cancel the same at any time and revert the Council servant
If the Council servant is acquitted on the merits of case or fully exonerated, the ad hoc promotion will be confirmed with all attendant benefits.
On conclusion of the disciplinary proceedings, if the Council servant is not fully exonerated in the departmental proceedings, the ad hoc promotion should be cancelled.
Prosecution
If the Council servant is acquitted purely on “technical grounds” and not on “merit” in the criminal prosecution, and if the Council either proposes to take up the matter to a higher court or to proceed against him departmentally, the ad hoc promotion accorded to him will be cancelled.
Regular promotion
If the Council servant is eligible for regular promotion from a date prior to the date of ad hoc promotion with reference to his placement in the Committee proceedings kept in the sealed cover and the actual date of promotion of the person ranked immediately junior to him by the same Committee, he would be allowed his due seniority and benefit of notional promotion.
On promotion, his pay gets fixed by grant of premature increments by the competent authority in terms of FR 27 at the stage the pay would have reached had he been promoted from the date the Officer immediately below him was promoted. No arrears would be admissible on such promotion. The seniority of the Officer will be determined in the order in which his name has been placed in the select list on review.
Seniority on delayed promotion
A Council servant on whom a minor penalty of withholding of increment, etc. has been imposed should also be considered for promotion by the Committee if it meets after imposition of said penalty. If he is considered fit for promotion despite the imposition of penalty, the promotion may be given effect to after the expiry of the penalty and his seniority would be fixed according to his position in that panel.
Review DPC
The sealed cover procedure cannot be resorted to by the Review DPC, if no departmental proceedings or criminal prosecution was pending against the Council servant concerned or he/she was not under suspension at the time of meeting of the original Committee or before promotion of his junior on the basis of the recommendations of the original Committee.
Service eligibility
The service eligibility in the promotional grade for further promotion shall commence only from the date of actual promotion. It should not be related even notionally to the date of promotion of the junior in the panel.
References
1. Swamysnews, May 1993, 258
2. GI MPPG&P DP&T OM No.20011/2/ 92-Estt.(D) dt. 30-11-1995; CSIR Lr. No.1(91)/ 85-O&M dt. 15-12-1995]
3. "Swamy's Compilation on Seniority and Promotion in Central Government Service (1997), Muthuswamy and Brinda, Swamy Publishers (P) Ltd., Chennai
4. "A Complete Book on Disciplinary Proceedings" (1999), D.B. Khanna, New Delhi
5. CSIR Lrs. No. 17/66/04-PPS dated 8-5-1998 and 2-8-2000
6. GoI DP&T OM No.22011/2/99-Estt.(A) dt. 21-11-2002; Swamysnews, Jan. 2003, 18
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