Mohosin Ahmed Laskar vs The State Of Assam And Ors

Court
Gauhati High Court

Page No.# 1/15
GAHC010178772025

undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4772/2025
MOHOSIN AHMED LASKAR
S/O- LATE ABDUL LATIF LASKAR, R/O- H.NO-46, WARD NO-7, WATER
WORKS ROAD, P.O AND P.S- SILCHAR, ASSAM, PIN-788001
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI-06 ,ASSAM
2:THE COMMISSIONER AND SPECIAL SECRETARY
TO THE GOVT. OF ASSAM
PWRD DEPARTMENT
DISPUR
GUWAHATI-06
ASSAM
3:THE DEPUTY SECRETARY
TO THE GOVT. OF ASSAM
PWRD DEPARTMENT
ESTABLISHMENT BRANCH
DISPUR
GUWAHATI-06
ASSA M

Page No.# 2/15

BEFORE
HON’BLE MR. JUSTICE SOUMITRA SAIKIA


Advocates for the petitioner : Mr. F Khan, Advocate
Advocate for the respondents : Mr. P Nayak, Addl. AG

· Date on which Judgment was reserved : Open Court Dictation
· Date of Pronouncement of Judgment : 29.05.2026
· Whether the pronouncement is of
the Operative Part of the Judgment : No

· Whether the full Judgment has been
Pronounced : Yes


JUDGMENT AND ORDER


Heard Mr. F Khan, learned counsel for the petitioner. Also heard Mr. P Nayak,
learned Additional Advocate General, Assam.
2] The petitioner, before the Court, is serving as an Assistant Executive
Engineer under the PWD Roads and he is posted at Majbat Rural Roads Sub-
Division, Udalguri. In connection with completion certificate issued by the
petitioner in respect of works undertaken by a contractor, which according to
the Department was contrary to the records, a vigilance case was instituted
against the writ petitioner being Vigilance Police Station Case No. 01 of 2024,
registered under section 120B/420/468/481/406/409 IPC read with Sections

Page No.# 3/15
13(1)(a)/13(2) of the Prevention of Corruption Act, 1988. The matter is at the
stage of investigation and prosecution sanction was also accorded by the
competent authority when, the petitioner's case came to be considered for
promotion to the next higher post, namely, the post of Executive Engineer, PWD
Roads, along with other similarly situated persons. His case was placed before
the Departmental Promotion Committee (DPC). The DPC, upon considering the
materials in respect of the petitioner, kept his case under sealed cover in view of
the materials placed before the DPC, that prosecution sanction has been
granted in respect of the petitioner on the day when the DPC had undertaken
the process of selection and recommendation. It is this action of the State of
resorting to sealed cover procedure that is assailed before the Court.
3] Learned counsel for the petitioner, referring to the judgments rendered by
the Apex Court in Union of India vs. KV Jankiraman reported in (1991) 4 SCC
109, as also a recent judgement of the Apex Court rendered in Union of India
and Ors. vs. Doly Loyi in Civil Appeal No.8387/2013 on 24.09.2024, submits that
as per the law laid down, the stage for resorting to the sealed cover procedure
in respect of any employee arises only after a charge sheet/charge memo has
been filed/issued. It is submitted that on the date when by the DPC the matter
was under consideration, no charge sheet was filed, only prosecution sanction
was granted. As such, the Department, contrary to the law laid down by Apex

Page No.# 4/15
Court, had kept the case of the petitioner under sealed cover. It is submitted
that the petitioner is unaware of whether he has been recommended for
promotion as his case was kept under sealed cover even before the charge
sheet was filed and, as a consequence, the petitioner was deprived of his
promotion to the next higher post along with his batchmates and, thereby, he
lost his seniority in service.
4] Per contra, Mr. P Nayak, learned Additional Advocate General, submits that
the contentions of the writ petitioner that charge sheet was not issued is
incorrect because subsequently the charge sheet has been submitted before the
Court and the matter is presently pending disposal before the competent court
of criminal jurisdiction. It is submitted that the Department had considered it fit
to keep the case of the petitioner’s case in sealed cover in view of the fact that
the prosecution sanction was issued and the investigation was proceeding in
right earnest, which will ultimately lead to filing of the charge sheet against the
petitioner. He therefore submits that since the charge sheet has already been
filed in the meantime, the petitioner's case should be considered only after the
completion of the trial.
5] Learned counsel for the parties have been heard. Pleadings available on
record have been carefully perused. Judgments pressed into service have also

Page No.# 5/15
been carefully noted.
6] The Apex Court in Jankiraman (supra) was examining the Office
Memorandum dated 30.01.1982, which came to be subsequently explained by
another Office Memorandum dated 12.01.1988. It was in the context of
interpretation of the Office Memorandum dated that the Apex Court had
rendered a finding that until and unless a charge sheet in a criminal proceeding
or a charge memo in a disciplinary proceeding is issued, the stage for putting
the case under sealed cover is not to be resorted to. This judgement has been
referred to and followed by subsequent judgement rendered by the Apex Court
arising in Doly Loyi (supra) wherein, a similar Office Memorandum came up for
consideration as the case of the respondent’s therein was kept under sealed
cover without any charge memo being issued. In that case also, the Apex Court
by referring to and relying upon the earlier precedents of the Apex Court had
dismissed the appeal preferred by the appellants upholding the judgement
rendered by the Delhi High Court.
7] Coming to the facts of the present case the State of Assam Department of
Personnel (B) had issued an Office Memorandum dated 09.05.2006. At Clause 2,
the Office Memorandum provides for three categories of officers. In respect of
all officers falling within the categories mentioned therein, the recommendations

Page No.# 6/15
of the DPC are to be kept under sealed cover. These 3 (three) categories are
quoted herein below:
2) At the time of consideration of the cases of Govt. Servants in the zone of
consideration for promotion falling under the following categories should be
specifically brought to the notice of the Departmental Promotion Committee/Selection
Committee/Appointing Authority :
(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 a criminal charge
is pending.
8] Mr. P. Nayak, learned Additional Advocate General, Assam, has fairly
submitted that this Office Memorandum dated 09.05.2006 has not been
superseded. He submits that on the date when the DPC had considered the
case of the petitioner, the case of the petitioner fall under any of the categories
mentioned in Clause 2 of the said Office Memoraumd. However, Clause 6 of the
said Office Memorandum therefore, provides that if the conditions specified in
Paragraph 2 of the said OM had arisen only after the Departmental Promotion
Committee or Selection Committee or Appointing Authority has made its
recommendations, and therefore, the recommendations could not be placed in
the sealed cover, the recommendations of the Departmental Promotion
Committee/ Selection Committee/ Appointing Authority shall be deemed to be

Page No.# 7/15
placed in a sealed cover and he shall not be promoted until he is exonerated of
the charges. The relevant clauses of the Office Memorandum dated 09.05.2006,
Clause 1, 2, 3 and 6 are extracted below:
“The undersigned is directed to refer to the office Memorandum No. ABP. 230/75/6
dated 6.7.1976 and political (A) Deptts. Letter No. PLA (V) 5793/31 dtd. 23.8.94 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 promotion of Government servants
against whom departmental / Court proceedings are pending reviewed carefully . Govt. have
also noticed the judgement dtd. 27. 8 . 1991 of the Supreme Court in Union of India etc.
vsK.V. Jankiraman etc. (AIR 1991 SC 2010) . As a result of the review and in suppression of
all the earlier instructions on the subject , the procedure to be followed in this regard by the
authority concerned is laid down in the subsequent paras of this O.M. for their guidance .
2) At the time of consideration of the cases of Govt. Servants in the zone of
consideration for promotion falling under the following categories should be specifically
brought to the notice of the Departmental Promotion Committee/Selection
Committee/Appointing Authority :
(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 a criminal charge is
pending.
3) The Departmental promotion Committee/Selection Committee/Appointing Authority
shall assess the suitability of the Government servants coming within the purview of the
circumstances mentioned in para-2 above, along with other eligible candidates, without
taking into consideration the disciplinary case/criminal prosecution pending . Therefore it is
made clear that only bare statement that case of an employee in the zone of consideration
/extended zone of consideration is covered by any of the three situations indicated in para-2
above is to be furnished to the Departmental promotion committee / Selection Committee /

Page No.# 8/15
Appointing Authority to enable it to place its recommendations in the sealed cover . No.
other details about the pending inquiry or the nature of Charges etc. are to be furnished to the
Departmental Promotion committee /Selection Committee/Appointing Authority list these
details weigh with the Departmental Promotion Committee/Selection committee /Appointing
Authority in making its recommendations, which are to be placed in the sealed cover.
……
6) If the conditions indicated in para-2 above arisen only after the Departmental
Promotion Committee /Selection Committee or the Appointing Authority has made its
recommendations and therefore, the recommendations could not be placed in the sealed
cover, the recommendations of the Departmental promotion Committee/Selection
Committee/Appointing Authority shall be deemed to have been placed in the sealed cover
and he shall not be promoted until he is exonerated of the charges . Therefore , after the
recommendations of the Departmental promotion committee/Selection
Committee/Appointing Authority have been approved by the Competent authority, it is
necessary to again seek the status position from the concerned vigilance division before
issuing promotion order in respect of any officer included in the approved panel of names to
ensure that there is no hindrance in issuing the promotion order in respect of the concerned
officer /Government Servant.”
9] As has been discussed above, the judgement of Doly Loyi (supra) was
rendered by the Apex Court is although as regards the interpretation of the
Office Memorandum dated 14.09.1992 governing the government servants who
were before the Court, the principle laid down by the Apex Court in Jankiraman
(supra) has been followed in a catena of subsequent judgments to submit that
the sealed cover procedure can be resorted to only where a charge sheet has
been filed in criminal proceedings before a court of competent criminal
jurisdiction, or where a charge memo has been issued by the competent

Page No.# 9/15
authority in disciplinary proceedings against the concerned Government servant.
Coming to the facts of the present case, the Office Memorandum dated
09.05.2006 was issued by the Department of Personnel, Government of Assam
specifically lays down the categories in respect of the officers cases in which
Sealed Cover Procedure is to be followed by the DPC. But what is to be noted is
the Clause 6 of the Office Memorandum dated 09.05.2006 provides that if the
conditions mentioned in paragraph 2 of the said Office Memorandum in respect
of any officer is satisfied after the DPC had made its recommendations, then the
recommendations of the DPC shall be deemed to be kept under the sealed
cover and the officer concerned will not be promoted until he is exonerated of
the charges. This Office Memorandum dated 09.05.2006 has not been assailed
nor has any material been brought before the Court to suggest that this Office
Memorandum dated 09.05.2006 has been superseded. No judgement has been
placed before the Court to show that this OM has been questioned and an
interpretation has been rendered by this Court or any other Court that the
conclusions in the OM will be restricted only to the extent of the law laid down
by the Apex Court in Jankiraman (supra) and Doly Loyi (supra).
10] The judgement has to be read for what it decides. The judgement of the
Court is not required to be interpreted as a statute. Therefore, what is binding
on a Court would be the ratio laid down by a Higher Court. Examining the

Page No.# 10/15
judgments of Jankiraman (supra) which was followed in Doly Loyi (supra), the
Apex Court therein was interpreting the effect of the Office Memorandum dated
14.09.1992 as also subsequent communication dated 15.09.2011. While the
ration laid down by the Apex Court in these judgments to the effect that the
“sealed cover procedure” is to be adopted only when any chargesheet is filed in
any criminal proceedings and/or when the chargesheet is issued in any
departmental proceedings is binding on this Court, however, in the present case,
the Office Memorandum dated 09.05.2006 clearly stipulates the procedure to be
followed by the Departmental promotion committee as also appointing authority
etc. What is equally specified is that is the event that at the time of
consideration of the case of the officer concerned by the DPC, the three
conditions mentioned in Caluse-2 of the said Office Memorandum were not in
existence and subsequent to the recommendation undertaken by the DPC if all
or any of the clauses came into existence after consideration of the matter by
the DPC, the departmental authorities would consider the case of the petitioner
to be “deemed to be kept under sealed cover” and promotion, if any, shall not
be given effect to until the office is exonerated of the charges. This Office
Memorandum dated 09.05.2006 was not subject matter of consideration before
the Apex Court more particularly when Clause 6 of this OM is not pari material
with the OMs dated 14.09.1992 & 15.09.2011 which were under consideration

Page No.# 11/15
before the Apex Court.
11] In the facts of the present case, there is no quarrel that after the charge
sheet has been filed, the matter is presently pending before the Court of
competent criminal jurisdiction. As on date, the petitioner has not been
exonerated of the charges levelled against him.
12] Under such circumstances, this Court irrespectfully accepts the ratio laid
down in Jankiraman (supra) which was followed in Doly Loyi (supra) as a
binding precedent as the principle laid down by the Apex Court in respect of
stage at which the findings of the DPC in respect of any delinquent officer is to
be kept under sealed cover. However, this Office Memorandum extends the
sealed cover procedure even to cases where, on the date of consideration by
the DPC, the parameters for resorting to the sealed cover procedure
althoughare not satisfied, namely, where no charge sheet in criminal
proceedings or charge memo in disciplinary proceedings has been issued,
notwithstanding that if after the DPC resolution or recommendation, if any of
the conditions mentioned at Clause-2 of the said Office Memorandum dated
09.05.2006 are applicable in respect of any of the officer whose cases are
considered by the DPC then the DPC recommendations in respect of that officer
will be deemed to be kept in ‘sealed cover’ and the benefits of any

Page No.# 12/15
recommendations in favour of the delinquent officer cannot be availed of till the
exoneration of charges either in criminal or departmental proceedings or both.
Consequently, in view of Clause 6 of the Office Memorandum dated 09.05.2006,
even if, on the date of consideration of the officer’s case by the DPC, the
conditions specified in Clause 2 of the said Office Memorandum are not
applicable to the said officer, the claim made by such an officer cannot be
entertained in view of this specific provision of Clause 6 of the said Office
Memorandum.
13] In the facts of the present case the dates in respect of the events are very
relevant. Sequence of the events in respect of the petitioner are enumerated as
under:
Sl
No.
Date Relevant Events
1. 20.12.2022 Suspension Order issued
2. 26.01.2023 Show-cause Notice issued
3 14.08.2023 Penalty imposed
4. 16.08.2023 Suspension revoked
5. 08.02.2024 FIR lodged in vigilance case lodged
registered as Vigilance P.S. Case
No.01/2024.

6. 11.07.2024 Notice issued under Section 41(A) of Cr.PC
7. 06.03.2025 DPC conclusion were kept under Sealed
cover
8. 24.06.2025 Batchmates of the petitioner promoted on

Page No.# 13/15
in pursuant to the DPC.
9. 13.08.2025 Writ petition was filed
10. The charge sheet in the vigilance case was
filed during the pendency of the writ
petition.


14] From the sequence of events extracted above, it is clear that on the date
when the DPC held its meeting, the conditions mentioned in Clause-2 of the
Office Memoradum dated 09.05.2006 was not attracted in so far as the writ
petitioner is concerned. The said conditions will stand effected by a deeming
fiction in view of the Clause-6 of the said Office Memorandum only after the any
of the conditions specified under Clause-2 of the Office Memorandum dated
09.05.20006 are satisfied including filing of the charge-sheet. However, on a
date prior to filing of the charge sheet, the batchmates of the petitioner who
were recommended by the DPC vide minutes of the meeting held on 06.03.2025
stood promoted on 24.06.2025. Therefore, had the petitioner’s case not been
placed under sealed cover by the DPC on a wrong interpretation of the law as
laid down by the Apex Court in Jankiraman (supra) and Doly Loyi (supra), and
had there been any favourable recommendation by the DPC in favour of the writ
petitioner, there was every positively that the petitioner would also have been
promoted along with his batchmates. Clause 6 of the Office Memoradum dated

Page No.# 14/15
09.05.2006 would not act as a bar had the DPC had recommended the
petitioner for promotion in the minutes of the DPC meeting held on 06.03.2025
and the competent authority considered such recommendations made in favour
of the writ petitioner along his batchmates.
15] Under such circumstances, this Court is of the considered view that the
accrued right of the writ petitioner for being considered on equal terms along
with his batchmates by the appropriate authority had been wrongly denied by
adopting the sealed cover procedure by the DPC on a wrong interpretation of
the law laid down by the Apex Court in Jankiraman (supra) and which was
followed in the judgment rendered in Doly Loyi (supra) and also the Office
Memorandum dated 09.05.2006 on the ground that grant of prosecution
sanction is sufficient to resort to sealed cover procedure. Since the case of the
petitioner has been kept in a sealed cover, the conclusion of the DPC by its
minutes of meeting held on 06.03.2025 is not known to the petitioner. In the
event the recommendation are in favour of the writ petitioner, his entitlement to
be considered equally with his batchmates stands crystallized in view of the law
laid down by Jankiraman (supra) which was followed in Doly Loyi (supra), as
admittedly the charge-sheet in the Vigilance Police Station Case NO.01/2024
was not filled at that relevant point in time.

Page No.# 15/15
16] Accordingly, the writ petition stands disposed of directing the respondents
authorities to examine the findings of the DPC by taking it out of the sealed
cover and if the findings are found to be in favour of the writ petitioner then
necessary steps be taken by the Appointing Authority for issuance of promotion
order of the writ petitioner to the next higher post of Executive Engineer with
effect from the date 24.06.2025 i.e. the date when the promotion of other
similarly situated persons were given effect to after being recommended by the
said DPC subject to the rules of seniority being adhered to. This exercise be
conducted by the respondents Department within a period of 30 (thirty) days
from the date of receipt of a certified copy of this order.
17] Writ petition accordingly stands disposed of in terms of the above and no
order as to cost.
JUDGE
Comparing Assistant