Pendency of CVC advice and disciplinary proceedings justifies deferring promotion.

The applicant, Gali Babu, aged 58 years, was appointed as Assistant Executive Engineer on March 2, 1990, and was due to retire on April 30, 2025.

His name appeared at Serial No. 04 in the All India Seniority List of Superintending Engineers as of January 1, 2023.

He was due for promotion to Chief Engineer for the panel year 2023, and his case was considered by the Departmental Promotion Committee (DPC).

Respondent No. 2 issued an order dated July 1, 2023, deferring his empanelment for promotion to Chief Engineer in Level-14 of the Pay Matrix without providing any reason, while approving the promotion of his juniors.

The applicant claimed a decent service record with no pending charge memo.

He had received a Show Cause Notice (SCN) on April 6, 2019, regarding irregularities in construction agreements from 2002-2004, to which he submitted explanations on April 11, 2019, and June 27, 2019.

As no further action was taken, he presumed his explanation was satisfactory.

Respondents stated that 41 officers were considered for 25 vacancies for the year 2023.

The UPSC recommended 25 officers in the main panel and 11 in the extended panel.

The DoP&T approved 20 officers from the main panel and 9 from the extended panel.

Cases of 7 officers, including the applicant, were deferred by the Appointments Committee of the Cabinet (ACC).

Respondents admitted the applicant was neither under suspension nor facing disciplinary proceedings or pending charge sheets.

However, his disciplinary folders were pending with the Ministry of Defence for first-stage advice from the Chief Vigilance Commission (CVC).

The General Officer Commanding-in-Chief, South West Command, had recommended disciplinary action based on a Court of Inquiry into irregularities in work execution at 27 FAD Kanasar.

Disciplinary folders were forwarded repeatedly to the Ministry of Defence after observations.

The CVC's first-stage advice recommended initiating major penalty proceedings under Rule 14 of CCS (CCA) Rules, 1965, against the applicant and two others, which was communicated on August 25, 2023.

A Charge Memo was subsequently issued to the applicant on October 23, 2023, and served on him in November 2023.

Hearing in the disciplinary enquiry commenced on May 11, 2024, prior to his superannuation on April 30, 2025.

Whether the deferment of the applicant's promotion to Chief Engineer, despite DPC recommendation, was arbitrary, illegal, unjust, and violative of Articles 14 and 16 of the Constitution of India?

Whether the applicant's promotion could be denied/deferred due to pending vigilance inquiries or an SCN, when no charge sheet or suspension was in place at the time of DPC consideration?

The court primarily applied the principles regarding promotion and sealed cover procedures as established by the Hon'ble Supreme Court in Union of India v. K.V. Janakiraman (1991) 4 SCC 109 and Union of India v. Sudha Salhan (Dr.) (1998) 3 SCC 394.

These cases state that consideration for promotion cannot be withheld merely on the ground of pendency of disciplinary or criminal proceedings unless a charge-memo in disciplinary proceedings or a charge sheet in a criminal prosecution has been issued.

The sealed cover procedure can only be resorted to after a charge memo or charge sheet is filed.

It also referred to DoP&T O.M. dt. November 2, 2012, clarifying that while consideration for promotion is a right, actual promotion requires vigilance clearance.

The court further referenced Bihar State Electricity Board and Ors., Vs. Dharamdeo Das and Ajay Kumar Shukla vs. Arvind Rai, stating that while the right to be considered for promotion is a fundamental right under Articles 14 and 16, promotion itself is not a vested right.

The court noted that the DPC had considered the applicant for promotion.

However, the ACC deferred his case due to pending disciplinary proceedings.

At the time of the ACC's order (July 1, 2023), no formal charge memo had been issued against the applicant.

The disciplinary proceedings were described as "on-going" and "under active progress" but were still in the stage of seeking advice from the CVC and responding to observations from the Ministry of Defence.

A charge memo under Rule 14 of CCS (CCA) Rules 1965 was only issued and served on the applicant in October/November 2023, after the ACC's deferment order.

This timeline was crucial per K.V. Janakiraman and Sudha Salhan, where it was held that promotional benefits cannot be denied unless a charge memo or charge sheet has been issued.

The Coordinate Bench at Jammu, in a similar case (OA.No.1233 of 2022), had quashed a deferment order when only an FIR was pending and no charge sheet was filed.

However, the present court distinguished itself by noting that the CVC had issued its first-stage advice recommending major penalty proceedings on August 25, 2023, and a charge memo was subsequently issued before actual promotion could be granted.

The court also emphasized the distinction between the right to be considered for promotion and the right to actual promotion, citing DoP&T O.M. and Supreme Court precedents, which allow withholding of actual promotion if vigilance clearance is not obtained.

Since his case was duly considered by the DPC and ACC, his right to be considered for promotion was not denied.

However, the subsequent CVC advice and issuance of the charge memo indicated that vigilance clearance could not be given, making the withholding of actual promotion permissible.

While the applicant's right to be considered for promotion was not denied, the department was within its right to withhold his actual promotion given the advanced stage of consideration for departmental action by the CVC and the subsequent issuance of a charge memo.

The Original Application was, accordingly, dismissed.