Deemed sealed cover procedure & reversion
P. Venu
(Querist) 27 July 2015
This query is : Resolved
An Officer, who was serving as Assistant Commissioner, was promoted as Deputy Commissioner on ad-hoc basis with effect from 1.8.2013.
The Departmental Promotion Committee for regular promotion to the same post met during July 2014. The Officer has been the senior most of the two officers in the one of consideration. Five posts of Deputy Commissioner were vacant.
The promotions, as recommended, were approved by the Minister in the last week of July. However, the said officer was placed under suspension pending disciplinary proceedings on 1/8/2014.
On the other hand, the other officer (who also was promoted on ad-hoc basis with effect from 1/8/2013) was promoted as Deputy Commissioner on regular basis on the same date.
The suspension was not continued beyond three months, no charge-sheet was issued but the suspension was revoked on 1/11/2014 and on the same date the officer was transferred in the capacity of Deputy Commissioner to another place and he has been functioning in that capacity.
However, on 21/7/2015 he has been reverted as Assistant Commissioner stating that the recommendations of the DPC in his case is deemed to have been kept in the sealed cover.
Till date no charge-sheet has been issued.
In the light of the facts, can the reversion be judicious and in accordance with the extant norms? What are the grounds on which he can seek judicial remedy?
Guest
(Expert) 27 July 2015
There is no provision of deemed sealed cover. Any recommendation of the DPC cannot be deemed to be in sealed cover unless that is actually sealed by the DPC that too if any disciplinary case is pending against the employee with charge sheet already stand served on the day of DPC.
Reversion on the plea of deemed sealed cover cannot be said to be judicious.
Sudhir Kumar, Advocate
(Expert) 28 July 2015
There is nothing like "deemed sealed cover"
Sealed cover procedure would apply if the candidate was under suspension /chargehsheeted on the date of DPC. But not in this case.
Please also see if SCN was issued before reversion and had such SCN been given by appointing authority.
P. Venu
(Querist) 30 July 2015
"Deemed sealed cover" procedure has been envisaged vide para 7 the DoPT OM dated 14/9/1992 which is reproduced below:
7. 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 recommendations of the 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 O.M. will be applicable in his case also.
The principle has been so described in various decisions of the CAT and High Courts.
The question in the present query is whether the procedure holds good once the suspension has been revoked and the officer has been functioning as the Deputy Commissioner since then and no charge-sheet has been served till date.
No SCN has been served on him before reversion.
Sudhir Kumar, Advocate
(Expert) 30 July 2015
"No SCN has been served on him before reversion. "
This itself is valid reason for setting aside reversion.
I would suggest you to kindly peruse FR31A and MoF instructions thereunder.
Guest
(Expert) 30 July 2015
Dear Shri Venu,
Para 7 of the O.M. is required to be read in consunction with para 2 of the O.M., ibid.
The date of promotion as DC with reference to the date of DPC recommendation and date of suspension is quite crucial, which is missing in your description.
However, if at the time of DPC and promotion based on recommendations of the DPC, the Officer was --
i) not under suspension
ii) not charge sheeted as of pending disciplinary proceedings; and
iii) not under trial for prosecution for criminal charge.
So, please check the actual date of DPC recommendation and the promotion order, respectively, with reference to the period of his suspension, if charge sheet has not yet been issued.
So far as provisions of FR 31-A is concerned, as suggested by Shri Sudhir Kumar, I am of the view that FR 31-A has no role to play here in the instant case, as in the present problem there is no issue of refixation of pay for the period of his promotion to the post of DC.
Sudhir Kumar, Advocate
(Expert) 30 July 2015
FR31-A and GOI thereunder relates to procedure for reversion from a post when competent authority considers someone to have been erroneously promoted.
Guest
(Expert) 30 July 2015
Dear Sudhir,
Please reproduce the exact MOF instructions about procedure for reversion, which you have referred and consider so. So far as I understand, MOF is not concerned with the staff matters. That looks after only the matters pertaining to finance.
