VIGILANCE MANUAL VOLUME III - AP Online

DECISION - 267
569
Amal Kumar Roy (AIR 1962 SC 1704) withholding of promotion for
any other reason except by way of punishment cannot be taken to
be a penalty as contemplated by rule 11(ii). Almost all the decisions
of the Andhra Pradesh High Court proceeded on the basis that
withholding of promotion is a penalty under rule 11(ii), that such a
penalty can be imposed only after the conclusion of the departmental
proceedings and not when the enquiry is pending and that therefore
withholding of promotion while disciplinary proceedings are pending
cannot legally be justified. The Tribunal held that this view cannot be
accepted in view of the observations of the Supreme Court referred
to above and in the context of the sealed cover procedure.
The Tribunal observed that the Explanation (iii) to rule 11
makes it clear that non-promotion after consideration of the official’s
claim for promotion for other reasons cannot be treated as a penalty.
Considering the views expressed on both sides, the Tribunal held
that explanation (iii) carves out from the main provision, non-promotion
after consideration for special reasons. It is no doubt true, explanation
(iii) does not say in what circumstances non-promotion after
consideration will fall thereunder. It is only for the purpose of filling in
the gap or to give full scope to explanation (iii), the instructions have
been issued by the Ministry providing for the sealed cover procedure.
So long as the instructions providing for a sealed cover procedure
do not conflict with the statutory rules, the procedure can be fully
operative. The Supreme Court has in the case of Shiv Singh vs.
Union of India (AIR 1973 SC 962) upheld the departmental instructions
for withholding of promotion in respect of a person who took part in
an illegal strike without initiating any disciplinary action. On a similar
reasoning in the matter of promotion if a person is under a cloud i.e.
person against whom disciplinary proceedings are pending, promotion
can be deferred by following the sealed cover procedure.
The Tribunal observed that there are two conflicting concepts,
one, a right to be considered for promotion is a right flowing from the